In whose best interests?

Abstract

For several decades medical ethics literature has stressed the importance of respecting the patient's right to make her own choices. The principle of autonomy or self determination is viewed as foundational in modern health care law.' More recently the pervasive influence of rights discourse has been underlined by various factors, such as the promulgation of the Patients' Charter, reforms to the structure of the NHS and the changing nature of the relationship between health care professionals and patients.2 The fundamental principle of English law that a competent patient can elect whether to receive or reject medical treatment, even if refusal of treatment may result in death, has been affirmed by the Court of Appeal.3 Self evidently the incompetent patient is in a different position, and it is debateable how meaningful the terminology of rights and autonomy is in her case. Instead, treatment decisions regarding the incompetent patient turn on an assessment of what is in her best interests. Where the incompetent patient is an adult this decision is entrusted to health care professionals, and best interests is determined by reference to the views of a responsible body of medical practice.4 In the case of the younger child patient such treatment decisions are generally vested in the persons with parental responsibility,5 although where parents have refused treatment on behalf of their children, courts have been prepared to override the parental refusal and authorise treatment in the child's best interests.6 Particularly vexed questions have arisen in relation to the treatment of adolescents who are on the borderlines of capacity.7 Although theoretically the focus is on the best interests of the patient alone, in reaching a judgment whether or not to interfere with parental decisions it is questionable whether the courts can have regard to the interests of the patient in abstraction from the interests of the decision-maker, whether they are family members or other carers.