In Whose Best Interests?
| Author | Jean McHale,Marie Fox |
| Published date | 01 September 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00109 |
| Date | 01 September 1997 |
CASES
In Whose Best Interests?
Marie Fox and Jean McHale*
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.
1
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.
Such issues were at the heart of a recent Court of Appeal decision. In Re T (a
The Modern Law Review Limited 1997 (MLR 60:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.700
* Faculty of Law, University of Manchester.
1 See McHale and Fox, with Murphy, Health Care Law: Text and Materials (London: Sweet &
Maxwell, 1997) Part I.
2 See, for instance, Kennedy, ‘Patients, Doctors and Human Rights’ in Kennedy, Treat Me Right
(Oxford: Clarendon, 1988); Brazier, ‘Rights and Health Care’ in Blackburn (ed) Rights of Citizenship
(London: Mansell Publishing Ltd, 1993); Montgomery, ‘Patients First: The Role of Rights’ in Fulford
et al (eds) Essential Practice in Patient-Centred Health Care (Oxford: Blackwell, 1996).
3Re T (adult: refusal of medical treatment) [1992] 4 All ER 649.
4Re F (mental patient) (sterilisation) [1990] 2 AC 1; Law Commission Paper No 231, Mental
Incapacity (London: HMSO, 1995).
5 Grubb, ‘Treatment decisions: keeping it in the family’ in Grubb (ed) Choices and Decisions in Health
Care (Chichester: Wiley, 1993).
6 See the cases cited at page 702 below.
7 See Brazier and Bridge, ‘Analysing Adolescent Autonomy’ (1996) 16 Legal Studies 84.
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