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A new kind of paternalism in surrogate decision-making? The case of Barnsley Hospitals NHS Foundation Trust v MSP
  1. Scott Y H Kim1,
  2. Alexander Ruck Keene2,3
  1. 1Department of Bioethics, National Institutes of Health, Bethesda, Maryland, USA
  2. 239 Essex Chambers, London, UK
  3. 3Dickson Poon School of Law, King's College London, London, UK
  1. Correspondence to Dr Scott Y H Kim, Department of Bioethics, National Institutes of Health, Bethesda, MD 20892, USA; scott.kim{at}nih.gov

Abstract

The modern legal and ethical movement against traditional welfare paternalism in medical decision-making extends to how decisions are made for patients lacking decisional capacity, prioritising surrogates’ judgment about what patients would have decided over even their best interests. In England and Wales, the Mental Capacity Act 2005 follows this trend of prioritising the patient’s prior wishes, values and beliefs but the dominant interpretation in life-sustaining treatment cases does so by in effect calling those values the ‘best interests’ of the patient and focusing nearly exclusively on the ‘subjective’ viewpoint of the patient. In this article, we examine the recent Court of Protection judgment in Barnsley Hospitals NHS Foundation Trust v MSP [2020] EWCOP 26, which adhered closely to this approach, to suggest that it could have unexpected negative consequences. These include insufficient information gathering about and attention to patients’ objective medical interests, inadequacy of the evidentiary standard used for the substituted decision-making and, in some cases, even prioritising a surrogate’s current substituted judgment over the potential for an actual judgment by the patient.

  • decision-making
  • competence/incompetence
  • end of life care
  • legal aspects

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Footnotes

  • Twitter @scottbioethics

  • Contributors Both SYK and ARK conceived and planned the paper, wrote complementary parts of first draft and approved the final draft.

  • Funding Funded in part by the Intramural Research Program of the NIH (CL010542).

  • Disclaimer The ideas and opinions expressed are the authors’ own; they do not represent any position or policy of the National Institutes of Health, the Department of Health and Human Services or the US government.

  • Competing interests None declared.

  • Patient consent for publication Not required.

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

  • Data availability statement The court judgment is in a public, open access repository.

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