J Med Ethics 35:733-738 doi:10.1136/jme.2009.030783
  • Paper
  • Clinical ethics

Best interests, dementia and the Mental Capacity Act (2005)

  1. T Hope,
  2. A Slowther2,
  3. J Eccles3
  1. 1
    The Ethox Centre, Department of Public Health, University of Oxford, Oxford, UK
  2. 2
    Clinical Ethics, University of Warwick, Warwick, UK
  3. 3
    Department of Elderly Medicine, St James’s University Hospital, Leeds, UK
  1. Correspondence to Professor T Hope, The Ethox Centre, Department of Public Health, University of Oxford, Old Road Campus, Old Road, Oxford OX3 7LG, UK; tony.hope{at}
  • Received 26 April 2009
  • Revised 12 July 2009
  • Accepted 17 August 2009


The Mental Capacity Act (2005) is an impressive piece of legislation that deserves serious ethical attention, but much of the commentary on the Act has focussed on its legal and practical implications rather than the underlying ethical concepts. This paper examines the approach that the Act takes to best interests. The Act does not provide an account of the underlying concept of best interests. Instead it lists factors that must be considered in determining best interests, and the Code of Practice to the Act states that this list is incomplete. This paper argues that this general approach is correct, contrary to some accounts of best interests. The checklist includes items that are unhelpful. Furthermore, neither the Act nor its Code of Practice provides sufficient guidance to carers faced with difficult decisions concerning best interests. This paper suggests ways in which the checklist can be developed and discusses cases that could be used in an updated Code of Practice.


  • Competing interests None.

  • Provenance and Peer review Not commissioned; externally peer reviewed.

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