Abstract
Determining the best interests of incapacitated patients has been observed to be an opaque area of the law, and this is no less so in decisions about the (non-)treatment of patients in the minimally conscious state. A systematic examination of the way best interests are used in judgments relating to this population suggests that narratives involving the character of the patient frequently form an important plank of judicial reasoning. Since insights into the concept of best interests may be gained by an engagement with the philosophy of well-being, I identify the court’s character-based approach with perfectionist theories of well-being. These use human nature to furnish an objective list of abilities needed for human flourishing. Guided by the Mental Capacity Act (MCA), this list becomes focused primarily on autonomy. Incapacitated patients are assumed to have wishes, but to lack agency. Judges search for these wishes in narratives about the patient and supply the means to exercise these wishes. This analysis suggests three concerns about the court’s approach: first, by placing so great a weight on autonomy, the law offers an impoverished account of human nature; secondly, adversarial law encourages partial determinations of character, and this raises concerns about whether the courts are equipped to explore the complexities of character narratives; and, thirdly, experimental psychology indicates character is not as predictable as an assessment under MCA requires. While character narratives may unburden decision-makers, this analysis suggests the limits of autonomy may have been exceeded in this area of the law.
Highlights
Incapacitated patients are assumed to have wishes, but to lack agency. Judges search for these wishes in narratives about the patient and supply the means to exercise these wishes. This analysis suggests three concerns about the court’s approach: first, by placing so great a weight on autonomy, the law offers an impoverished account of human nature; secondly, adversarial law encourages partial determinations of character, and this raises concerns about whether the courts are equipped to explore the complexities of character narratives; and, thirdly, experimental psychology indicates character is not as predictable as an assessment under Mental Capacity Act (MCA) requires
Our preliminary investigation into the interaction between bioethics and medical law used a thematic approach to analysing judgments of the best interests of patients in minimally conscious state (MCS)
A number of themes arose from the analysis, including the frequent use of narratives about the character of patients
Summary
In the absence of a valid advance decision or LPA, the Court of Protection may explore the character of the incapacitated patient to assay their wishes and values in accordance with the MCA 2005, section 4(6) In these cases, character informs a narrative that underwrites a best interests judgment. The three rulings on the case of David James again contain dichotomous claims about the identity of the patient, but this time autonomy, eventually, prevails On their way to this conclusion the judgments indicate the dramatically different conclusions that can follow from an emphasis on either a happy and determined character, or on the burdens of treatment. NHS v James (n 78) [22]. ibid [23]. ibid [26]
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