Discuss the accuracy of this statement with reference to English law in the context of consent to or refusal of medical treatment.
The best interest came into being when the patient refused to consent. The common law prior to the implementation of Mental Capacity Act 2005(hereinafter referred as MCA 2005) had developed best interests principle. It is undeniable that common law had widened the usage and new principles were developed in accordance to a different situation of facts. It is undeniable that there were limitation at that time as the court had shown preference to the opinion of doctors as for example the patient was unconscious blood transfusion was done which was against her religious belief. Marry Donnelly remarked that “the best interests standard has often been treated as if its application required no more than general good will on the part of the decision-maker.
However the application of best interests is applied when the patients or parents refuse to consent. When the doctor proceeds to the medical treatment without his consent he is liable in criminal offence and civil suit would be initiated. The consent should any be any external influences such as undue influence. The best interests principle has its roots from the basic principles of human right. In Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital  only confined to the advice of medical treatment. The dissenting judgment of Lord Scarman remarked that:
‘….. a doctor who operates without the consent of his patient in cases of emergency or mental disability, guilty of the civil wrong of trespass to the person; he is also guilty of the criminal offence of assault. The existence of the patient’s right to make his own decision, which may be seen as a basic human right protected by the common law, is the reason why a doctrine embodying a right of the patient to be informed of the risks of surgical treatment….’ 
The principle of consent is found in medical ethics and at the same time it is enshrined in the international human rights law. There are of course terms used to explain consent, that is, voluntary, informed and capacity. The duty of doctor is to inform the seriousness of the treatment and advise the patient of any alternative treatment. In this respect Sir Thomas Bingham M.R remarks that ‘the right to reject treatment extends to deciding not to accept treatment in the future by way of advance directive or “living will.” A well-known example of advance directive is provided by those subscribing to the tenets of the Jehovah’s Witnesses who make it clear that they will not accept blood transfusions. After taking into the account of patient’s condition doctor had gone ahead with the blood transfusion despite the fact that evidence revealed that she professed to the teaching of Jehovah. In Malette v Shulman  the Ontario Court was in view that the defendant was liable in trespass and the court further stressed that the right of individual autonomy and ‘principles of self-determination’  .
It is noted by Butler-Sloss remarked in Re MB that “a mentally competent patient has an absolute right to refuse to consent for any person, rational or irrational for no reason at”. The court shall intervene to treat the patient on the basis of best interest. The court would also taken into account the other factors before allowing the patient not to have the treatment or surgery.
Truly the common law best interests had been expanded over the years. The critics have noted that best interests were not a complete guidance to determine the best interest. The best interest evolved from ethics and welfare of the patient but new principles evolved when the court encountered with new facts.
The court in the past had applied the welfare and despite the fact that the patient refused to operate the court had directed to undergo the caesarean. In St George’s NHS v S, an emergency caesarean section was carried. S refused to have the operation. The facts of the case were a pregnant woman and her unborn baby’s life were at danger due to the severe pre-eclampsia. She wished to have a natural birth and refused to go to hospital. The section 3 of Mental Health Act 1983 was invoked of which she was her shifted to another hospital whereby caesarean section was carried out. The Court of Appeal remarked that “the procedure adopted to preserve the mother and unborn child did not involve a preference for one rather than the other  .”
The court in Re B(adult :refusal medical treatment)  had assessed the capacity of the patient and allowed her lasting will to prevail despite the fact the doctors argued on the best interest. In comparison with Re C (Adult: Refusal of treatment)  , the Court of Appeal after the finding that the patient had the capacity to understand and retained the relevant information. C was suffering from chronic paranoid schizophrenia.
In Re A (medical treatment: Male Sterilasation)  , the fact of case was a handicapped adult had down syndrome and he was 28 years old. He was classified “on the borderline between significant and severe impairment of intelligence”. He lived with her 63 year old mother who was concerned about her health and that would result lack of supervision of her son. The fear was he would make a lady pregnant. She sought the court for a declaration that sterilisation was the best interests. The application was made and rejected by the Official Solicitor. Butler-Sloss P explained that “best interests encompasses medical emotional and all other welfare issues  “. Judges do take into account of medical experts but it may not be a major reason to decide the case on the basis of best interests but “will decide what constitutes best interests of the particular patient”.  This sort of case is based on the fact that consent could not be obtained from the mental incapacity. The lordship clarified that best interests of the patient should be determined by court but not doctors. She further added that “the doctor, acting to that required standard, has, in my view, a second duty, that is to say, he must act in the best interests of a mentally incapacitated patient. I do not consider that the two duties have been conflated into one requirement”  . She had cautioned that court “should be slow to take any step which might infringe the rights of those unable to speak for themselves” because of the incorporation of European Convention for the Protection of Human Rights and Fundamental Freedom 1950 in the domestic law.
Besides, the Court of Appeal highlighted the check list which was recommended by the Law Commission to assess the evaluation of best interests of a person lacking capacity. Lord Thorpe clarified that “the present case the instance would be the acquisition of foolproof contraception and the other sheet the judge should write any counterbalancing dis-benefits to the applicant.”
In the application of the principles of best interests of an infant, Lord Donaldson said that:
……….to the fact that even very severely handicapped people find a quality of life rewarding which to the handicapped may seem manifestly intolerable… But in the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause increased suffering and produce no commensurate benefit, giving the fullest possible to the child’s and mankind’s, desire to survive 
Butler- Sloss LJ came to the conclusion by comparing with RE B (A Minor) Wardship: Medical Treatment)  , the aforesaid case the baby was suffering from Down’s syndrome and at the same time had an intestinal blockage which necessitated an immediate operation. The parents decided that it was the best interest of child not to undergo the operation as the child would suffer and prefer to live the child to die naturally. The surgeon refused to operate because they did not consent. In this respect Lord Templeman remarked that the “decision which must he made in the light of evidence and views by the parents but at the end of the day it devolves on this court in this particular instance to decide whether the life of this child is demonstrably going to be so awful that must stay to die”.
The court had taken into account the welfare aspects and derived that incapacity person should not be deprived of treatment and the law should not treat the incapacity person as second class citizen  . The parent of mentally handicapped patient wanted to perform sterilisation. Hollis J allowed the sterilisation after evaluating the welfare of patient and it was the best interests of patient to undergo the treatment.
Furthermore, the court had assessed the advantages and disadvantages of treatment the likely effect on the patient’s best interest. According to Butler-Sloss P, the enjoyment of life is important in assessing best interests and the “benefit of treatment has to be balanced and considered in the light of any additional suffering the treatment option would entail”  .
In a similar case the patient was in the sound state of mind and made a living will stating not to have medical treatment. In Re B (adult: refusal medical treatment),  the claimant suffered suffered a haemorrhage of the spinal column in her neck. She was admitted in the defendant hospital, NHS trust. She was discharged and went to work for a while until her condition became bad. She was readmitted to the hospital suffering an intramedullary cervical spine cavernoma. The disease became worsen and she had difficulty in respiration. She underwent a neurological surgery to remove the cavernous haematoma. She was able to move her hear and was in the position to converse. She informed her solicitor to remove the life support ventilator despite the fact death would result. The ventilator had not been switched off. The hospital psychiatrists were not able to conclude her mental capacity. The trust was not willing to accept the assessment made by other doctors about her capacity and continued with the ventilator. The court held that the claimant wishes had to be respected and the issue of lack of mental capacity did not arise. It appears that best interests for a patient not to suffer in the vegetative state. But in the situation in emergency cases medical staffs are protected by the doctrine of implied consent provided if the proceeded to give treatment in order to preserve the patient’s life. The treatment rendered has to be reasonable with the current practice . In case of non-emergency case, the doctrine succinctly laid down by Lord Goff in Re F 2 AC 1 AT 75 which states that “there must be necessity to act when it is not practicable to communicate with assisted person, but also the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted”.
The above mentioned cases cited reveals that court seldom interfere the decision of a patient who had the mental capacity to decide for themselves no matter such decision may not be of his best interest. However it is a different situation where a patient who does not have the mental capacity to consent treatment then the court provides aid to such patient on the basis of best interests. Furthermore the courts prior to MCA 2005 accepted the right of autonomy and it is pertinent to cite what Lord Donaldson MR remarked in Re T (Adult Refusal Treatment)  that “the patient’s interest consists of his right to self-determination—his right to live his own life how he wishes, even if it will damage his health or lead to his premature death.”
According to Olive LP in Re(A minor)(Wardsip Treatment) argued that “it is not about the convenience of those whose task it is to care for the ward or the anxieties of her family; and it involves no general principle of public policy. It is about what is in the best interests of this unfortunate young woman and how best she can be given the protection which is essential to her future well-being so that she may lead as full a life as her intellectual capacity allows”
It is undeniable that best interests is embodied in the Mental Capacity Act 2005(hereinafter referred as MCA 2005) came into force in 1st October 2007 made significant change notably in the capacity, incapacity and some of the principles of best interests are applied. The MCA provides assistance for those who could not decide for themselves. The MCA comprises five set of principles to assist the carers, parents, relatives and professionals. The person who lacks the capacity is explained in Section 2 of MCA 2005 that a person is not able to make a decision because of the impairment of mind or any disturbance in the mind or brain. Section 3 of MCA 2005 contains to those who are unable to make decision’. This means the assessor has to take into account. There are ingredients that fall under this category as for instance that affected patient could not understand the information or the ability to retain information is no longer present in his mind, unable to communicate his decision and unable to weigh that information. This was in fact first introduced by Thrope J in Re C (Adult: Refusal of Treatment)  namely “comprehending and retaining treatment information, believing it and weighing it in the balance at choice”.
The best interests is contained in section 4 MCA 2005 which is important section providing a guidelines. This is not the “an exhaustive list in the consideration of relevant factors.”  The person making determination has to consider all the relevant circumstances. The assessment of a person to have the capacity is provided under the Section 4(2). The liberal approach towards the patient is contained in the section 4(4). The aforesaid subsection in fact encourages the patient to make own decision, or “to improve his ability to participate in making decision. The patient past and present wishes and feeling has to be ascertained. The belief may affect his decision and it is appropriate to consult those who care the patient. The last will has to be taken into account. The assessor role is to determine that a patient who is in the life-sustaining treatment should not bring to the death on the basis of best interests.
The requirement of section4(6) MCA is that the decision maker has to take into account the incapable person’s past wishes and feeling and has to identify ‘any relevant written statement made by [the person] when he had capacity’  . The subsection further requires that decision –maker has to take note of ‘the beliefs and values that would be likely to influence [the person’s] decision if he had capacity’. The decision-maker has to consult the different types of people as listed in section 4(7)
The requirement of section 4(6) is the decision- maker has to consider the person’s past wishes and any advance refusal is contained in the section 24 and 25
Section 24 provides that a capable person of the MCA allows such person over the age of 18 to make an advance decision in order not to have treatment. It is sure that section4(6) has wider application as compared to section 24 and this is left to the court to determine in future.
The Section4 (7) was not applied in Re P (adult patient) (medical treatment)  because of the fact that his adoptive mother was opposing to the medical treatment. The fact of the case was the patient was an adult man suffering from severe, frequent and uncontrolled epilepsy. His adoptive mother believed that the cause of constant epilepsy was due to the medication. Owing to this the local primary trust initiated proceeding so that the sufficient treatment and medical assessment given to P. The court granted an interim order to carry out the assessment. The issue was what best interest of P. The Court of Protection was cautious not to contravene article 5 of the convention. According to Sir Mark Potter remarked that “for the purposes of medical treatment, if found to be in the best interests of P, and that such an order would not be in breach of art 5 of the ECHR, provided that the conditions enumerated by Munby J in City of Sunderland v PS were met  .”
Emily Jackson remarked that “in cases where the patient’s view about what treatment are in direct conflict with her doctor ’s view about what treatment would be in her best interest, it remains to seen.”
In DH NHS Foundation Trust  v PS (by her litigation friend the Official Solicitor), the patient was mentally impaired and did not have the mental capacity to decide. The claimant NHS Foundation Trust wanted the defendant to undergo the surgery. The defendant was suffering from cancer of the uterus and bi- lateral salpingo-oophorectomy (removal of the fallopian tubes and ovaries). Without the operation tumor would eventually spread and caused her to death. A consultant psychiatrist specialising in learning disabilities said that she was lacked the mental capacity. The Court of Protection considered the alternative treatment and accepted the assessment made by the psychiatrist. The learned judge considered the growth of cancer will be fast and order the Trust to send the patient to the hospital for surgery.
The above case had taken into account the best interest as contained in the MCA and the assessment was carried out by a professional of that field to determine the capacity.
In Re P (Adult patient: Consent to medical treatment)  , proceedings was brought under the MCA 2005. P is an adult suffering from severe and complex epilepsy. He stays with his adoptive mother who takes care of him very well. Proceedings were taken against him by local primary care trust for his treatment and “was the subject of an interim declaration of incapacity”.
Sir Mark Potter P considered best intersts “on the basis of the requisite balance sheet approach (see RS (Sterilisation: Patient’s Best Interests)  EWLR 1288 and City of Westminster v IC and others  EWHC 3096 (Fam). Sir Mark Potter remarked that:
“….. the wording of s 15(1) (c) of the MCA which confers on the court the general power to make declarations as to “the lawfulness or otherwise of any act done, or yet to be done, in relation to” a person who lacks capacity to make a decision as to his best interests in relation to medical treatment. Reliance is also placed upon s 48 of the MCA which provides in general terms that the court may, pending the determination of an application to it in relation to P, make an order or give directions in respect of any matter if there is any reason to believe that P lacks the capacity in relation to that matter, which is one to which the court’s powers under the Act’
Apart from this, best interest principles have to blend with Human Right Acts 1998. The right of protection does not confine to the incapacity but also the capacity, family and private life. The right of “physical and psychological integrity”  of an individual is the one of the fundamental of human rights. In accordance to Marry Donnelly remarked that “the MCA also reflects the approach taken by the Council of Europe Recommendation on the Legal Protection of Incapable Adults and that of the United Nations Convention on the Rights of Persons with Disabilities. One of the fundamental principles underlying the UN Convention is ‘full and effective participation and inclusion in society  .
In conclusion, the common law expanded the expansion and development of the principles of the best interests. To recap the statement of Butler-Sloss P the lordship elaborated and widely introduced the emotional, welfare issues and medical benefits. The greatest contribution made was towards the separation between the best interest and Bolam test but the inclusion of the human rights was taken into account in a lesser degree. The Court of Appeal  developed the check list which was supported by the Law Commission. Thorpe LJ used a balance sheet in order to list out the benefits to be obtained from the medical procedure. However the check list developed was limited because the patient’s view was not taken into account and the right of patient participation was not included. The setback at that time the court imposed The Law Commission Report provided the rights of patients to be heard. In Re A the Official Solicitor called Dr. Holland who is the Advisor’s Syndrome Association considered that the handicapped adult and derived an opinion that such operation of vasectomy was not the best interests.
In addition to this, the court did allow the person lacking capacity to be expressed their wishes but their wishes seemed to have little impact. In relation to this was a case of handicapped woman who wanted to have a child but her desire to have a child was not accepted by the court. In Re X (Adult Sterilisation)  the handicapped woman has an intelligence of 4-6 years old but she was 31 years old who has a good physical appearance. She had sexual relationship with men. The X’s parent was supported by another daughter. The parents were worried that X would become pregnant. She would be unable to take care of her baby. Besides, the down syndrome daughter was sexually desirous and used to socialize. The court granted sterilization based on the best interests of Miss X. The court was in opinion that she was not capable of caring the baby and the process of delivery was painful in which she would be unable to take care. Holman J remarked that:
“But in the end, however, it seems to me that this takes me back to the very first point. X is quite unable to make any sensible, informed decision for herself, so other people have to make it for her. Even though subjectively she feels she would like to have a baby, it remains objectively completely contrary to her (I emphasise the word ‘her’) best interests to do so.”
With the legislation of MCA 2005 I am sure that there would be new cases to comes in which the best interest will be widely applied and brings more meaning. The MCA seems to assess subjectively and slowly reducing the objective test but it is going to be a challenge to come in the application of best interests.
Last but not the least I do agree that best interest prior to MCA 2005 was limited in its scope but it is not “empty rhetoric”. With the new act which is only about 4 years old will broaden the application of the best interests in accordance to the section. The MCA 2005 ensures that person lacking capacity should encourage in the participation in making the decision, the past and present wishes, the feeling of the patients, the religion and to their beliefs. The aforesaid act introduces the objective test A best interest under the MCA 2005 is quite similar with the human rights standards and therefore I am in opinion that it is not “empty rhetoric”. 
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