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Best Interests, Public Interest, and the Power of the Medical Profession

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Abstract

This article provides an understanding and defence of ‘best interests’. The analysis is performed in the context of, and is informed by, English law. The understanding that develops allows for differences in values, and is thus argued to be appropriate in a pluralist liberal system. When understood properly, it is argued, best interests provides the best means of decision-making for people deemed incompetent to decide for themselves. It is accepted that some commentators are cynical of best interests in practice. Following an assessment of some of their principal concerns, it is suggested that best interests in fact provides a construct that is both defensible and desirable.

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Notes

  1. Or if it is, it is a concept with many mutually exclusive features. I find it analytically clearer to understand it as a construct that entails distinct conceptual aspects.

  2. Although I tend to focus in this article on the medical profession, the arguments apply, I think, more broadly to health care professionals.

  3. This last can in fact be responded to in two apparently different ways that might in effect amount to the same thing, if not in name: the first is to say that best interests can not be a guiding principle that will be satisfactory in every case, but only in some [16, 35]. The second is to say that best interests is coherently more than one thing [21]. This is not to imply that the authors of these articles are arguing the same thing in their respective articles, but merely to highlight the approach taken by Kopelman, whose commitment to the best interests principle and the need for coherence require this sort of reasoning.

  4. This line of reasoning, relating to claims about epistemic uncertainties can even be aimed at a person’s ‘knowledge’ of what is best for himself [34].

  5. For arguments considering how this can play out in a liberal system generally, and principled analysis of the law that might regulate conflicting interests or freedoms, see [2].

  6. Based on the claim in [5], where the authors say that the claim that best interests are unknowable, “while theoretically true, is practically false …”, p. 482.

  7. For an example of such an investigation, albeit one where the views were found not to inhere in the patient, see [15].

  8. Note the analysis in [6].

  9. Not something that Harris is committed to advocating, it should be stressed.

  10. The first set of italics in this quote is mine.

  11. Gray’s work strikes me as the most plausible expression of the type of liberalism the law should seek to respect. An alternative, non-agnostic liberal account of the interplay between individual choice and the public interest is found in Joseph Raz’s work, e.g., [25]. See especially pages 52–55, for a convincing argument that works in parallel with the one advanced here, for analysts unsatisfied with the notion of agnostic liberalism.

  12. It states in paragraph 15: “It is for the patient, not the doctor, to determine what is in the patient’s own best interests”.

  13. Mental Capacity Act 2005, s 1(4).

  14. Mental Capacity Act Code of Practice, available at http://www.dca.gov.uk/menincap/legis.htm#codeofpractice (accessed 14/03/07), p. 67.

  15. This point speaks against an apparent asymmetry that some may perceive in health care provision—namely that those without capacity are entitled to have their interests better protected than those with capacity. In fact, everyone (subject to the various qualifications that apply universally) is entitled to treatment in accordance with his best interests.

  16. For an overview of the freedoms upheld by law, see [4, pp 236–240].

  17. See Mental Capacity Act Code of Practice, p. 68: “The term ‘best interests’ is not actually defined in the Act. This is because so many different types of decisions and actions are covered by the Act, and so many different people and circumstances are affected by it”.

  18. Mental Capacity Act 2005, section 4.

  19. Mental Capacity Act 2005, section 1(6).

  20. Ibid., section 4 (3).

  21. Emphasis added.

  22. Emphasis added.

  23. John Finnis levels a similar criticism to Foster in [9]: “The issue is not one of disguise or sincerity, but of the true implications of principles and notions being put into practice by a group of citizens whose medical qualifications, experience and ethos confer no standing to settle for the whole community such issues of meaning, consistency, humanity and justice.” p. 334.

  24. His recent judicial support comes from a dictum that claims only to apply “Normally”, and he says (without elaboration or justification) that patients in a persistent vegetative state “fall into a rather special category”.

  25. See the section entitled “The Best Understanding of Best Interests”, above.

  26. Such studies would be possible. See, for example, [33].

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Acknowledgements

Thanks to participants at the Workshop on Best Interests, Cardiff Law School (12/04/07) for helpful discussion and comments on the issues considered here, and to Margot Brazier, Andrew Edgar, Søren Holm, and Sheelagh McGuinness for comments on drafts of this article. I gratefully acknowledge the support of the British Academy Postdoctoral Fellowship Scheme.

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Coggon, J. Best Interests, Public Interest, and the Power of the Medical Profession. Health Care Anal 16, 219–232 (2008). https://doi.org/10.1007/s10728-008-0087-7

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