The paternalistic approach is where the medical professionals act in the best interests of the patient and this was historically taken by doctors. [1]
It states in the Mental Capacity Act 2005[2] that ‘an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests’. Regardless of the statutory checklist which section 4 has set out of the enumerating components that need to be taken into account in determination of patient’s best interests, but the meaning of the concept is not totally clear. There is no definition within the Act for the term best interests.
When the patient makes an advance decision[3] this is a decision made by the patient if they lose their capacity to accept or not to accept a treatment.[4] The patient needs to be over the age of 18, importantly have capacity at the time it is made and also refusals only as stated in the case R (Leslie Burke) v General Medical Council [2004][5]. Treatment cannot be demand for by the patient but the patient can be kept artificially alive if being the best interests of the patient. If a doctor is indeed content that the advance decision is valid and effective, the result is that the doctor would not be accountable if a specific treatment is withdrawn from the patient and guidance can also be sought form the court if it is suitable.
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The case of Bland[6] took the concept of treatment medical law">medical treatment further to artificial nutrition and also observed how the extraction of artificial nutrition would impact the best interests of a PVS (persistent Vegetative State) patient with no hope of recovery. There was an agreement by the court that duty towards PVS patient of a doctor is not to prolong life at all costs.[7] It is made clear by the court that the English concept of objective best interests cannot be associated with the substituted judgement approach (adopted by USA) nevertheless the views as well as personality of the patient will certainly form a portion of the best interests assessment. [8] In case of A Hospital v W [2007][9] evidently applied the principles in Bland where it was restated that withdrawing life sustaining treatment would be lawful to PVS patient and Art 2 as well as Art 3 of ECHR would not be breached. Also, even though having a duty to act in the best interests of a patient who lacked capacity but there is no duty in continuation of treatment if there is a form of medical opinion stating that being in the VS where no hope of recovery.
The judges took a more paternalistic approach in the case of Re T[10] in the situation where life-saving blood transfusion needed to be ordered to be administered to a non-consenting patient. The understanding of best interests of the courts is purely of medical interests and opposes on the point that the personal situations of the patient or the choice of the patient could bind the practitioner in his decision to treat a patient or not or even how to a patient. The debatable conclusion taken by the court that, ‘it is the duty of the doctors to treat [a patient] in whatever way they consider, in the exercise of their clinical judgment, to be in his best interests.’ [11]
The Court of Protection were requested to appoint a deputy for an elderly couple in the case of S v S.[12] the couple’s past wishes as well as preferences accredited significant weight according to Judge Marshall. It is argued ‘where P can and does express a wish or view which is not irrational … is not impracticable … and is not irresponsible … then that situation carries great weight, and effectively gives rise to a presumption in favour of implementing those wishes’, in paragraph 57.[13] On the other hand, Lewison J in the case of Re P, states that it was ‘may have slightly overstated the importance to be given to P‟s wishes’ by Judge Marshall.[14] Also, he opposes to the fact that the best interests test is of substituted judgement but instead is an objective one and states that ‘the decision maker must form a value judgment of his own‟ when determining best interests’.[15] Additionally, keeping good intentions to one side, Berlin specifies that the paternalistic approach could be exposed to abuse of power by the dishonest which is entrusted to practitioners.
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It is also problematic as the patient’s best interests definition by the paternalistic approach is of a narrow one as for the reason determination of best interest is not of medical facts alone but the patient’s views and beliefs matter too. (footnote Hope et al 2008)
A patient’s autonomous decision which is based on religious beliefs will be respected. If the decision is not based on any religious beliefs is irrational that there is no logic, the court will state that the patient is lacking capacity and will interfere by allowing the doctors to take a paternalistic approach and the treatment will be ordered if it meets the patient’s best interests.
It seems to be determined by a case by case basis, so question arises if the court’s approach has become more paternalistic regarding the cases of refusals of treatment. In the case of Re C, the decision which could have resulted in death, the patient was sought to have capacity even though it was clear he was delusional. On the other hand, in the case of Re MB, it was sought that the patient lacked capacity because of a needle phobia, so the court was willing to supersede the patient’s refusal of treatment for this reason.
Advance decision — If a doctor is indeed content that the advance decision is valid and effective, the result is that the doctor would not be accountable if a specific treatment is withdrawn from the patient and guidance can also be sought form the court if it is suitable.
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Patient case study. Part I: I would like to start by saying that AIDS is a short form for Acquired Immune Deficiency Syndrome. It is a disease that damages the body's immune system (the system that helps fight off illnesses). When a person's immune system is damaged, he or she is more likely to become sick from illnesses that might not hurt a person who has a healthy immune system. The person's ...
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[2] Hereafter MCA 2005
[3] Section 24-26 MCA 2005
[4] Law express book 39
[5] R (Leslie Burke) v General Medical Council [2004] EWHC 1879
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