Chapter Chapter 5 - The Aspen Company of New Zealand

Chapter 5
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Chapter 5: Best Interests – a Standard for
Chapter 5 is in two sections:
The absence of a “best interests” standard for decision-making in the PPPR Act and in
the HDC Code.
The evolution of the common law and codification of the best interests standard for
decision-making under s 4 of the Mental Capacity Act (MCA).
The MCA has a statutory “best interests” standard. It applies where a person takes actions or
decisions on behalf of another person who lacks capacity and is “unable to make a decision”,
as defined in sections 2 and 3 of the MCA. 633 A “checklist” in s 4 provides a process for
assessing the person’s best interests (the best interests assessment) and sets out matters
that the substitute decision-maker (the decision-maker) must consider. These matters include
the aim that the person with impaired capacity should participate in determining their best
interests, recognising the person’s present and past wishes and feelings, and acknowledging
the beliefs and values that would have likely influenced their decision if they had capacity.
Under the MCA, the concept of best interests therefore provides a framework for decisionmaking on behalf of people with impaired capacity. Previously, the law focused mainly on the
autonomy of people with capacity, such as their right to refuse medical treatment, rather than
on decision-making for people who could not make autonomous decisions. 634 As discussed
in Chapter 2,635 this best interests framework is compatible with supported decision-making
because it requires participation by the person with impaired capacity where possible, and it
is an appropriate approach to decision-making for people who cannot make decisions for
themselves. This approach also recognises that, even if a person is unable to make a legally
binding decision with support, their likely will and preferences remain central to the decisionmaking process: capacity is not an off-switch to a person’s rights and freedoms.636
Best interests guides substitute decision-making and is often contrasted to the notion of
substituted judgment. While the former has traditionally been viewed as an objective standard,
the latter is more subjective because it instructs the decision-maker to make the decision that
the person would have wanted if they had capacity to do so. It has been preferred by courts
in the United States.637 It is considered to uphold the person’s autonomy to a greater degree.
Both approaches have their challenges. 638 The statutory standard in the MCA can be
See Appendix C and Mental Capacity Act, s 4. Section 1(5) states 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
Buchanan and Brock, above n 34 at 3.
See Chapter 2 Supported decision-making.
Wye Valley NHS Trust v Mr B, above n 171.
Donnelly, above n 254 at 176.
Donnelly, above n 254 at 177.
regarded as a hybrid approach, as a subjective element was introduced that was previously
absent from the common law’s approach to substitute decision-making.
New Zealand’s legal framework provides no such comprehensive standard for decisionmaking where a person has impaired capacity. The PPPR Act refers to decisions being made
in a person’s “welfare and best interests”, and, under Right 7(4) of the HDC Code, decisions
can be made in a person’s “best interests.” However, best interests is not a primary principle
of either piece of legislation and there is no guidance on how these best interests decisions
are to be made in light of a person’s “will, preferences and rights” under the United Nations
Conventions on the Rights of Persons with Disabilities (CRPD). 639
How best interests is assessed under the MCA, and the case law around it, is considered
below. Recommendations are then made for revised legislation to provide a best interests
standard in New Zealand based on s 4 of the MCA.
Best interests and the PPPR Act
Promoting the “best interests” of people with impaired capacity is not a primary objective of
the PPPR Act, although it is often assumed that it is. It is not stated as a key statutory principle
governing the exercise of the court’s jurisdiction, nor as the basis for the appointment of a
substitute decision-maker, such as a welfare guardian or an attorney under an EPOA. It is
only once a substitute decision-maker has been appointed that the welfare and best interests
of a person who lacks capacity becomes a paramount consideration in making decisions on
that person’s behalf.640 There is also no clear direction that the court must make decisions in
the person’s best interests.641 In practice, the concept of best interests is given considerable
weight in judicial reasoning, but the Act provides no guidance as to what best interests means
or how this would be operationalised.
In some sections of the PPPR Act best interests is given priority. For example, in s 18(3),
regarding the exercise of a welfare guardian’s powers, it is said: 642
In exercising those powers, the first and paramount consideration of a welfare guardian
should be the promotion and protection of the welfare and best interests of the person for
whom the welfare guardian is acting, while seeking at all times to encourage the person
to develop and exercise such capacity as that person has to understand the nature and
foresee the consequences of decisions relating to the personal care and welfare of that
person, and to communicate such decisions. [Emphasis added]
Article 12(4) of the CRPD uses the formulation ‘rights, will and preferences’.
The phrase “best interests” is used in 10 sections of the PPPR Act, primarily to highlight when the Court
(or a trustee corporation) should or should not make an order or appoint a manager, for example, ss
30(1)(c), 31(5)(e), 32(3)(b), 105(1)(a) and 125(b). Best interests is not a criterion for personal orders
under s 10 or the appointment of a welfare guardian under s 12.
Personal and Property Rights Act 1988, ss 12(5)(b), 18(3), 97A(2) and 98A(2).
This expression of paramountcy is reiterated in s 36(1) with regard to property managers and in ss
97A(2) and 98A(2) with regard to attorneys in promoting and protecting the welfare and best interests
of the donor, whether in regard to use of the donor’s property or personal care and welfare.
In the past, the “welfare and best interests” of the person has been referred to as “the welfare
principle”.643 The notion of “welfare” adds little to the concept. “Welfare and best interests”’
could be described as a triple tautology as ‘best’, ‘interests’ and ‘welfare’ all have the same
purpose.644 In philosophical literature, the notions of welfare and well-being are viewed as
the same, whilst the term “best interests”, so important in legal thought, is little analysed. 645
As with cases applying the English common law best interests test, a number of the early
cases under the PPPR Act were concerned with sterilisation or orders to terminate a woman’s
pregnancy.646 In KR v MR,647 where a personal order was sought to terminate the pregnancy
of a disabled woman, Miller J considered the correct approach to the welfare principle: 648
The welfare principle is capable of being viewed from a range of perspectives. It is
susceptible to prevailing social norms and the personal values of the decision-maker. It
is not an objective test and its workability depends on informed fact finding and the wise
exercise of discretion.… The principal objectives also quite plainly envisaged that there
may be ‘secondary’ objectives, which are unspecified. Nonetheless, from the point of
view of the person in respect of whom the decision is being made the principal objectives
are a surer guide to the exercise of the decision-maker’s discretion than is a general
appeal to the welfare principle.
The participatory model of the PPPR Act requires appointed welfare guardians and property
managers to consult with the person subject to the order. It is only when exercising these
powers, however, that the “first and paramount consideration” is said to be promoting and
protecting the person’s welfare and best interests.649 Importantly, this requirement that the
welfare guardian or attorney must act in the person’s best interests only operates once
incapacity has been established and the appointment of a substitute decision-maker made.
Despite this implied rather than expressed status of the best interests principle, 650 there is
now considerable case law, particularly in respect of living arrangements for older adults,
where the Court has accepted jurisdiction and made orders considered to be in the person’s
best interests, albeit against their express wishes. In Hutt Valley DHB v MJP,651 MJP, the
person subject to the application, neither wanted nor had any support at home but was unable
to look after herself. Personal orders for dementia level care and necessary medical treatment
were made despite the express wishes of MJP to return to her own home. The Court held
that for its jurisdiction to be governed solely by the least restrictive intervention principle –
Re H [1993] NZFLR 225, Judge Inglis.
Interview with Dr Dominic Wilkinson, Director of Medical Ethics at the Oxford Uehiro Centre for Practical
Ethics (A Douglass, Dunedin, 9 July 2015).
Herring and Foster, above n 306 at 484.
See for example Re H, above n 643, and the decisions based on the parens patriae jurisdiction at
common law: Re E v E [1986] 2 SCR 388; Re B (a minor, wardship: sterilisation) [1987] 2 All ER 206;
and Secretary, Department of Health and Community Services v B (Marion’s case) (1992) 175 CLR 218.
Above n 52.
KR v MR, above n 52 at [65]. Miller J noted that whilst the welfare principle is the first and paramount
consideration may appear “…self-evident at first blush, this was not necessarily so as a matter of
construction under s 10”.
Personal and Property Rights Act 1988, ss 18(3) and (4) (welfare guardian) and s 98A(2) (attorney in
relation to personal care and welfare).
The implicit reliance upon best interests by the Court was noted in a review of the implementation of the
PPPR Act for people with intellectual disabilities: A Bray and J Dawson Who Benefits from Welfare
Guardianship – A Study of New Zealand Law and People with Intellectual Disability (Donald Beasley
Institute, Dunedin, 2000).
Hutt Valley DHB v MJP [2012] above n 42. See also, Atkin B and Skellern A “Adults with Incapacity:
The Protection of Personal and Property Rights Act” in Dawson and Gledhill, above n 92, at 341.
which is explicit in the Act – would be to limit its application to the most compelling cases of
incapacity. Judge Moss said a balancing approach was required: 652
It is in this area of fine distinction that meaning must be found to find the difference between
an intervention to the least extent possible, which will enable capacity, and what is in the
best interests and welfare of the patient.
The best interests principle tends to be disguised by the court in such a balancing exercise,
where, for example, a person’s decision to refuse admission to residential care is called into
question. This implicit reliance on best interests does not necessarily involve placing weight
on the person’s current or previous will or preferences, however, but rather goes to the degree
of intervention likely to be imposed by the court order.
The High Court has previously cautioned against adopting an overly legalistic approach when
applying the PPPR Act’s express principles – to make the least restrictive intervention and
maximise the person’s participation – to ensure that the welfare and best interests of the
person are also taken into account, even if this matter is not expressed as a guiding principle
of the Act.653 The precise role that best interests plays remains unclear, however, as it does
not expressly apply to the initial finding that the person lacks capacity, nor is it the stated legal
foundation for intervention against the person’s express preferences.
Best interests – a different standard to child law
In contrast to adult guardianship law under the PPPR Act, the Care of Children Act 2004
(COCA) places the welfare and best interests of the child as the first and paramount
consideration.654 The Act provides five principles to assist in this evaluation, with an emphasis
on protecting child safety, and on parental and guardian responsibility. 655
This difference between the PPPR Act and the COCA stems from fundamental policy
differences between the two pieces of legislation. The purpose of the COCA is to promote
children’s welfare and best interests, with an overall purpose of protecting children. The
COCA anticipates that children may be able to participate in decisions about their interests, 656
however, the threshold for state intervention is low.657 In contrast, the primary objectives of
the PPPR Act are to make the least restrictive intervention possible while enabling and
encouraging the adult person to exercise and develop their capacity. 658 The aim of the PPPR
Act is to “protect and promote” the interests of adults who are unable to manage their affairs.
Although there is a protective function, there is a presumption of competence and recognition
that intervention is only appropriate where an adult lacks capacity in law.
Hutt Valley DHB v MJP above n 42 at [16].
In the Matter of A [1996] NZFLR 359 (HC) where there was a personal order in addition to a welfare
guardian order. The welfare guardian powers were restricted so that the subject person was not to leave
the primary care residence without further order of the Court.
Care of Children Act 2004, s 4(1). ”The welfare and best interests of a child in his or her particular
circumstances must be the first and paramount consideration.”
In B v K [2010] NZCA 96 at [37] Arnold J explained how the principles in s 5 of the COCA are to be
interpreted: “The answers to the question what is in the best interests of a particular child may differ as
between judges. This is not because they involve discretionary decisions but because they involve
evaluative assessments, which will not by their nature yield definitive answers”.
Care of Children Act 2004, s 16(1)(c) uses the term “helping the child to determine questions about
important matters affecting the child”.
It is beyond the scope of this report to consider the competency of children in law to consent to medical
treatment under the COCA, for example.
Protection of Personal and Property Rights Act 1988, ss 8(1) and (2).
The ill-defined concept of “welfare and best interests”, applying to substitute decisions for
adults under the PPPR Act, runs the risk of being confused with the necessarily more
protective policy objectives for the care and protection of children under the COCA. What is
important is that all welfare tests are subject to limitations, and failure to clearly delineate
these limitations risks tipping the balance from welfare and best interests, to protective
Best interests and the HDC Code
Healthcare decisions may be made in a person’s best interests under Right 7(4) of the HDC
Code.660 If a “consumer” (person) is “not competent” to make an informed choice or give
informed consent and there is no substitute decision-maker, Right 7(4) of the HDC provides
legal justification for providing health and disability services without consent. The healthcare
provider must, however, take certain procedural steps and act in what they consider to be the
person’s best interests.
The Right is based on the common law principle of necessity. As described by Lord Goff in
Re F,661 this principle is based on the “need” for the patient to receive treatment, in their own
interests, when they are (temporarily or permanently) disabled from giving consent. Read in
conjunction with Right 7(1), this Right has the effect of ensuring that the provision of treatment
without consent will not infringe the HDC Code in the specified circumstances, whether or not
some statutory or common law justification is also applicable. 662
The procedural steps in Right 7(4) requires a provider to take reasonable steps to ascertain
the views of the person and consider whether there are reasonable grounds to believe that
the provision of services would be consistent with the informed choice the person would make
if they were competent.663 If the person’s views have not (or cannot) been ascertained, the
provider should take into account the views of other suitable persons who are interested in
the welfare of the consumer and available to advise. 664
There is no definition in Right 7(4) of “other suitable persons”. The range of possibilities could
extend beyond family and next of kin to the patient’s GP (who may have admitted the patient
to hospital), or caregivers and social workers who have some knowledge of the patient’s
preferences and wishes, as well as an interest in their care and welfare. The provider of the
services, for example a surgeon seeking consent from a patient for an operation, need only
have a reasonable belief, based on their own judgement, as to the person’s best interests, to
proceed. Right 7(4) may still be satisfied even where the views of other suitable persons
cannot be obtained: for example, when it would be unreasonable to delay treatment, for
example, and there is no-one available to consult in the timeframe available.
There is a substituted judgment element in Right 7(4) as the provider must reach a decision
that is “consistent with” the informed choice that the person would make if they were
Email from Professor Mark Henaghan, Dean of Otago Law School to A Douglass (Dunedin, 3 May 2016).
Right 7(4) of the HDC Code is also set out in full in Appendix C and is discussed in Chapter 3 regarding
the common law doctrine of necessity upon which it is based.
F v West Berkshire Health Authority [1991] UK HL 1 (17 July 1990) Lord Goff of Chieveley at 24. Also
cited in Re F (Mental Sterilisation), above n 125.
Skegg, above n 109, at 300. There is also a defence available to providers under clause 3 of the HDC
Code and they will not be in breach of the Rights in the Code in they take reasonable actions in relation
to them.
Right 7(4) (b) and (c)(i).
Right 7(4)(c)(ii).
competent to do so. Similar principles apply under Right 6, the right to be fully informed.
However, Right 7(4) stops short of requiring the provider to act on the “views” of the person,
once reasonable efforts have been made to ascertain them. Nor does it specify what the
provider should be do where there are conflicting views, or views they disagree with, or how
they should weigh the various views to reach a decision. 665
Ultimately, Right 7(4)(a) suggests that the person’s best interests is the main factor in reaching
a decision. Therefore, it seems, a provider could ascertain the views of the person and others
but then decide that these views were contrary to the person’s best interests, and not follow
them. For example, if a person has consistently said they do not wish to receive renal dialysis
for their failing kidneys and their family supports this, then it seems the health practitioner,
having ascertained their views, could still reach a legally (but not ethically) defensible decision
to provide the treatment, based on what they consider to be in the person’s best interests.
Right 7(4) is a pragmatic response to the need for everyday healthcare decision-making for
people unable to made decisions that are legally effective. The scope of its application is
intended to be narrow. It relies largely upon the notion of “clinical” best interests as judged
by the healthcare provider. As such, it provides an unsatisfactory standard for decisionmaking for people with impaired capacity in a wide range of circumstances. There is also
considerable uncertainty about the extent to which Right 7(4) can be relied upon on a
continuing basis, rather than in one-off situations or emergencies.666
The evolution of best interests at common law
The power to make medical welfare decisions in the best interests of an incapacitated adult
was first formally recognised by the courts in England in a 1990 case in the House of Lords.
In Re F,667 the issue was whether a profoundly mentally disabled young woman who was
living in a hospital setting and having a sexual relationship with a man in circumstances where
contraception was considered unsuitable, should have a hysterectomy to prevent her
becoming pregnant and having a child. The House of Lords held that the common law doctrine
of necessity allowed the medical treatment of adults who were unable to give consent.
Treatment or care, which might otherwise be an assault upon a person who lacked capacity
to agree to it, was lawful, provided it was in the best interests of the person concerned.
Right 6 provides: “Every consumer has the right to the information that a reasonable consumer, in that
consumer's circumstances, would expect to receive…”
The issue of relying on the doctrine of necessity and Right 7(4) of the HDC Code to make decision that
deprive a person of their liberty is discussed in Chapter 3 Liberty Safeguards.
Re F, above n 125. There were a series of cases involving sterilisation of disabled women at that time,
for example, T v T [1988] 1 All ER 613 at 625. There was further recognition of the declaratory jurisdiction
in a Court of Appeal decision In Re F (Adult: Court’s Jurisdiction) [2001] Fam 38, Dame Butler-Sloss
held that although an 18-year-old mentally handicapped woman did not come within the guardianship
principles of the MHA 1983, and was too old for the court’s wardship jurisdiction, the court was entitled
under the inherent jurisdiction and bests interests doctrine to make declaratory judgments when there
was risk of possible harm in respect of an adult who lacked capacity to make decisions.
This jurisdiction was first limited to declarations of lawfulness related to medical treatment 668
but later was extended to non-medical issues as well, such as a person’s residence and
contact with others. The resulting body of law is described by Fennell as one of the most
dramatic manifestations of judicial creativity in recent years. 669 The COP recently expanded
the declaratory jurisdiction to cover the withdrawal of life-sustaining treatment from someone
who was in a minimally conscious state, not a permanent vegetative state. 670
In Re F, the House of Lords, in the same judgment, adopted the Bolam test for medical
negligence671 as the standard governing health providers’ determinations of best interests.672
This meant that the task of determining a patient’s best interests was effectively delegated to
the medical profession, making the question a clinical one to be judged by a narrow “not
negligent“ test.673 The adoption of this standard, referred to as the “Bolamisation” of medical
law,674 has been adopted in different areas of medical law besides negligence, including
informed consent and when determining “Gillick” competence for consent from children. 675
More recently, the Bolam test has been put to rest with regard to the duty of a doctor to
disclose information to the patient for the purpose of obtaining informed consent. 676
The case law on necessity and best interests continued to evolve after Re F and many of
these developments were codified in the MCA. The need to have a wider best interests
criterion was recognised in English Law Commission reports, culminating in the enactment of
s 4 of the MCA.677 In modern parlance, when applying the MCA both doctors and lawyers
refer to “clinical” best interests – that is, what a doctor might think best in the clinical
circumstances of a person’s case – as a distinct concept. It contributes to decisions about,
but remains distinguishable from, a person’s best interests as understood under the MCA.
The declaratory jurisdiction has also been exercised for the continuance of artificial nutrition and
hydration: Airedale NHS v Bland, above n 165.
P Fennell “Mental Capacity” in LO Gostin, P Bartlett, P Fennell and others (eds) Principles of Mental
Health Law and Policy (Oxford University Press, Oxford, 2010) at 168.
M v Mrs N [2015] EWCOP 76 (Fam) Hayden J. The Court had to consider whether the best interests of
Mrs N, who suffered progressive and degenerative impact of multiple sclerosis to receive life sustaining
treatment by means of clinically assisted nutrition and hydration (CANH) currently provided by a (PEG)
Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582. The Bolam test is as
follows: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as
proper by a responsible body of medical opinion.
Re F, above n 125 at 78.
M Donnelly “Best Interests, Patient Participation and the Mental Capacity Act 2005” (2009) 17 Med Law
Rev 1 at 3.
M Brazier and J Miola “Bye-bye Bolam: A Medical Litigation Revolution?” (2000) 8 Medical Law Review
85 at 90.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. See also, M Dunn, I Clare, A
Holland and others “Constructing and reconstructing “Best Interests”: an Interpretative Examination of
Substitute decision-making under the Mental Capacity Act” (2007) J Soc Welf Fam Law 117.
Montgomery v Larnarkshire [2015] UKSC 11. This case concerned a pregnant diabetic patient who was
not warned by her consultant about the risk that her baby, being relatively large size in relation to the
mother’s pelvis, would have shoulder dystocia. The doctor thought the mother would opt for a caesarean
section, which the doctor considered to not be in her best interests.
Szerletics, above n 209.
Best interests under the MCA
The MCA therefore now provides the framework for the application of the best interests test
and the Court of Protection provides important guidance on its interpretation. Although a
comprehensive definition of a person’s “best interests” is deliberately not provided by the
MCA, it sets out a number of rules which must be followed. These require that a decisionmaker must consider all relevant circumstances, and in particular: 678
Equal consideration and non-discrimination: Determinations must not be made merely
on the basis of the person’s age or appearance, or on the basis of unjustified
assumptions from the person’s condition or behaviour;
Regain capacity: Consider whether the person is likely to regain capacity and, if so
when that is likely to occur;
Permitting and encouraging participation: Encourage the person to participate as fully
as possible in the decision before making it for the person;
Best interests decisions in relation to life-sustaining treatment: These decisions must
not be motivated by a desire to bring about the person’s death;
Person’s past and present wishes, feelings, beliefs and values: This includes
consideration of written statements, the person’s beliefs and values, and any other
factors that the person would be likely to consider if they were able; and
The views of other people: Consult a number of people including carers, holders of
lasting powers of attorney, deputies and anyone else named by the person.
Constructing decisions
Assessing best interests (or “benefit” under Scottish law) is described by Adrian Ward, a
Scottish lawyer, as a process of “constructing decisions” on behalf of the person who cannot
make the decision themselves.679 Neither the MCA nor its Code of Practice provides an
indication of the relative weight to be given to the various factors.680 For example, it is possible
for two individuals conscientiously to apply the s 4 “checklist” and come to different views as
to where the person’s best interests lie, but both views could be “reasonable”. Under s 5 of
the MCA, both could then act on their beliefs to carry out routine acts of care and treatment
safe in the knowledge that they were protected from liability. 681 The duty to consult the person
The factors listed here in s 4 of the MCA are set out in the Law Commission Report at 160. See Appendix
C for s 4 of the MCA.
The methodology for assessing benefit under the Adults with Incapacity Act (Scotland) is set out in A
Ward above n 128 at Chapter 17 (A Douglass, Interview with Adrian Ward, Edinburgh, 29 May 2015).
See, for example, MCA Code of Practice, above n 285 at 86 [5.5] to [5.7]. Note that the framework
under the MCA creates the role of a best interests assessor. The design of the Act is that if a person is
a decision-maker whether the person making the decision is acting as a family carer, a paid care worker,
an attorney, a court appointed deputy or a health professional. As long as these acts or decisions are
in the best interests of the person who lacks capacity to make the decision for themselves, or to consent
to acts concerned with their care or treatment, then the decision-maker or carer will be protected from
liability under ss 5 and 6.
Example given in Ruck Keene and Butler-Cole, above n 201. In the ZH v Commissioner of Police, above
n 415 at [40], the Court of Appeal emphasised that the defence afforded to health and social care
and others is wide. In Winspear v City Hospitals Sunderland NHS Foundation Trust, 682 the
Court emphasised that, where the duty to consult under s 4(7) of the MCA has arisen and has
not been complied with, there will be no defence available under s 5 of the MCA. 683 While
the duty to consult is not absolute, the person carrying out an act in connection with care and
treatment will not be able to proceed as if they had the consent of the individual lacking
In weighing the factors under s 4 of the MCA, the Courts have endorsed a “balance sheet”
approach whereby the relevant benefits and burdens of a particular course of action are listed
and, only where the “account” can be said to be in “significant credit” can a decision be said
to be in a person’s best interests.684 Although case law has confirmed that there is no
hierarchy between these factors, in that the weight attached to each will vary in the
circumstances of each case, certain factors can become “magnetic” and tilt the balance. 685
The person’s wishes, feelings, beliefs and values
Section 4(6) requires the decision-maker:
So far as is reasonably ascertainable to consider –
(a) The person’s past and present wishes and feelings (and, in particular, any relevant written
statement made by him when he had capacity),
(b) The beliefs and values that would be likely to influence the decision if he had capacity, and
(c) The other factors that he would be likely to consider if he were able to do so.
The practical effect of s 4(6) is to require the decision-maker to attempt to ascertain what the
person’s subjective preferences would have been, had they been able to express them. This
does not require the decision-maker to make a formal substitute judgement, by trying to put
themselves in the shoes of the person, as the matters itemised in subsection (6) are merely
considerations when deciding what the person would have wanted. Therefore, although there
is an element of substituted judgement involved, the MCA represents a compromise between
the objective and subjective approaches to decision-making for people with impaired capacity.
professionals delivering routine acts of care and treatment is “pervaded by the concepts of
reasonableness, practicality and appropriateness”.
[2015] EWHC 3250 (QB).
The provisions of MCA s 5 are based on the common law doctrine of necessity as set out in Re F, above
n 125. See MCA Code of Practice, above n 285 at Chapter 6: “What protection does the Act offer for
people providing care and treatment?” In addition, s 6 places clear limits on the use of force or restraint
by only permitting restraint to be used for example, to transport the person to their new home, where
this is necessary to protect the person from harm and is a proportionate response to the risk of harm. It
is beyond the scope of this report to consider whether statutory protection for carers and health
practitioners, as provided for in ss 5 and 6 of the MCA would be appropriate or necessary in New
Zealand’s medico-legal environment under the no-fault treatment injury provisions of the Accident
Compensation Act 2001.
Re A: (Mental Patient: Male Sterilisation) [2000] 1 FCR 193 at 206, Thorpe LJ.
Re M [2009] EWHC 2525 (FAM) At [35] Munby J lists the relevant factors, including: the degree of the
person’s incapacity, for the nearer to the borderline the more weight should be attached to their wishes
and feelings; the strength and consistency of the person’s view; and the extent to which P’s wishes and
feelings, if given effect to, can properly be accommodated within the Court’s overall assessment.
Where the person’s reliably identifiable wishes and feelings suggest a course of action that
would be profoundly risky for them, the relative weight to be given to the person’s wishes and
feelings has been contentious, 686 as the statute does not set out a hierarchy of these
Conflict between past and present wishes and feelings
Nor does the MCA expressly indicate whether it is the present or the past wishes and feelings
of a person that should be given priority, and neither are determinative. There may be
situations where there is a conflict between the person’s own views pre- and post-incapacity.
A person’s past preferences may not be relevant if their present circumstances have changed
radically. Ward suggests that a person should “not be treated as irrevocably ‘owned’ by the
past adult, and … present wishes and feelings should prevail”. 688 For example, under an
advance directive,689 a person, while capable, may express a strong preference that they
would not wish to live with profound disabilities but when in that situation may appear to be
Such conflicts are an inevitable feature of the hybrid, participatory approach taken to best
interests by the MCA and do not diminish the value of its approach. 691
Whose best interests?
Although there is a general obligation to consult certain people during the course of a best
interests assessment, the overall aim is to have a better understanding of what would be in
the individual’s best interests.692 The court has accepted, however, there are certain situations
where the interests of others are inseparable from the interests of the protected person and
therefore seem to carry moral relevance when making decisions on the person’s behalf. In
the case of Re Y,693 a woman with severe disabilities was deemed to be the best suitable
donor for her sister who suffered from a bone marrow disorder. The Court held that the
required operations were in Y’s best interests as she would tend to prolong her sister’s life
and Y would continue to receive emotional, psychological and social support from her sister
in return.
There have also been cases of substituted “financial altruism”. In Re G (TJ),694 Morgan J
directed the court-appointed deputy of an elderly woman who lacked capacity, to make
maintenance payments from her funds to her daughter on the basis that the payments were
in the best interests of Mrs G. The approach taken in this case was a substituted judgment
A Ruck Keene and C Auckland “More presumptions please? Wishes, feelings and best interests
decision-making” (2015) Eld LJ 293.
MCA Code of Practice, above n 285 at 81 [5.38].
A Ward Greens Essential Legislation: Adults with Incapacity Legislation (Thomson Reuters/W Green,
London, 2008) at 15.
The requirement to take account of the person’s past wishes in s 4(6) of the MCA may be conflict with
the advance refusal provisions provided for in ss 24-26 of the MCA.
M Donnelly “Determining Best Interests under the Mental Capacity Act 2005” (2011) 19 Med Law Rev
304 at 311; Re Martin (1995) 538 N.W n.99.
Donnelly, above n 673 at 2.
Mental Capacity Act 2005, s 4(7).
Re Y (Mental Patient: Bone Marrow Donation) [1997] Fam 110.
Re G (TJ) [2010] EWHC 3005 (COP) Morgan J.
approach. Both the previously expressed wishes of Mrs G, as well as the hypothetical wishes
and feelings that she would express if she were able, were considered.695
The impact of the best interests decision on others is considered relevant regarding the court’s
power to make gifts. In David Ross v A,696 Senior Judge Lush authorised the payment of A’s
brother’s school fees from A’s clinical negligence award in circumstances where it was clear
that A’s well-being depended in large part upon the well-being of her family as a whole. A,
who was severely disabled at birth, will never have the capacity to make or contribute to a
decision of this kind and reliance was placed on the views of the professional deputy who
managed her funds and knew her family well.
Best interests and “the patient’s point of view”
Aintree University Hospital NHS Foundation Trust v James 697 was the first decision of the
Supreme Court of the United Kingdom under the MCA. It concerned a seriously ill man who
lacked capacity to make decisions about his medical treatment. The hospital sought a
declaration that it would be in the best interests of Mr James to withhold specified lifesustaining treatments should they be needed. His family opposed the application. The High
Court declined the application and the Court of Appeal reversed that decision. Mr James died
following a cardiac arrest but in view of the importance of the issues and the different
approaches taken in the lower courts, the Supreme Court gave Mr James’s widow leave to
appeal. The Supreme Court was unanimous in rejecting the widow’s appeal but disagreed
with the Court of Appeal’s reasoning, preferring the approach adopted by the High Court.
In Aintree, the Supreme Court addressed the question of how doctors and courts should
decide when it is in the best interests of the person to be given, or not given, treatments
necessary to sustain life. The Court held that the question for the Court is whether it is in the
patient’s best interests to receive the treatment, rather than in their best interests to have it
withheld or withdrawn. Where there is complete agreement among clinicians that
life-sustaining treatment should not be offered and their stance is confirmed by an
independent expert who would also be unwilling to provide such treatment, there is, in effect,
no best interests decision to be taken, as there is no treatment option available to the patient.
Lady Hale corrected the Court of Appeal’s suggestion that the test for considering a patient’s
wishes and feelings is an objective one of what a reasonable patient would think. As Lady
Hale noted: 698
The purpose of the best interests test is to consider matters from the patient’s point of
view. That is not to say that his wishes must prevail, any more than those of a fully
capable patient must prevail. We cannot always have what we want. Nor will it always
be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to
determine what his wishes were in the past, they may well have changed in light of the
stresses and strains of the current predicament.
Lady Hale confirmed that “the preferences of the person concerned are an important
component in deciding where his best interests lie.” She went on to state: 699
… in considering the best interests of this particular patient at this particular time,
decision-makers must look at his welfare in the widest sense, not just medical, but social
Re G (TJ), above n 694, at [35].
[2015] EWCOP 46.
Aintree, above n 164.
Aintree, above n 164 at 18 [45].
Aintree, above n 164 at 15 [36].
and psychological; they must consider the nature of the medical treatment in question,
what it involves and its prospects of success; they must consider what the outcome of
that treatment for the patient is likely to be; they must try and put themselves in the place
of the individual patient and ask what his attitude to the treatment is or would be likely to
be; and they must consult others who are looking after him or interested in his welfare,
in particular for their view on what his attitude would be. [Emphasis added]
Some cases have suggested that, in certain circumstances, the person’s wishes and feelings
will be determinative. In Re S,700 Hazel Marshall QC J accepted that the person’s views are
not ordinarily paramount, but went on to say that where a person’s wish is not irrational (in the
sense of being a wish that a person with full capacity might reasonably have), is not
impracticable as far as its physical implementation is concerned, and is not irresponsible,
having regard to the extent of the person’s resources, then a presumption arises in favour of
implementing their wishes, unless there would be some sufficiently detrimental consequence
for the person to outweigh this.
Best interests and proposed law reform under the MCA
It has been argued that the Supreme Court judgment in Aintree has given a new impetus to
the centrality of the person at the heart of the best interests process.701 However, the recent
House of Lords’ report on the operation of the MCA notes that one of the problems was that
the wishes and feelings of the person lacking capacity were not routinely prioritised in best
interests decision-making and, instead, “clinical judgements or resource-led decision-making
Moreover, for pragmatic reasons, it will not be possible for every decision by a person lacking
capacity to be the subject of a best interests determination under the MCA. 703 The House of
Lords report found that “the best interests principle is widely praised but its implementation is
problematic”.704 There have been a number of cases where insufficient recognition has been
given to the person’s wishes and feelings when making a best interests decision, as well as to
the presumption that living or contact with family is in the person’s best interests. 705
The Law Commission has now proposed that the MCA should be aligned, as far as possible,
with the CRPD. However, the UN Committee has effectively rejected best interests decisionmaking, saying national laws must ensure that the person’s “rights, will and preferences” are
respected, rather than decisions being based on an objective assessment of their best
interests.706 While the MCA refers to “wishes and feelings” in this context, the CRPD adopts
the term “will and preferences”.707 The Law Commission did not consider that there was any
substantial difference between these phrases, although they are deployed for different
[2008] EWHC (16) FAM.
House of Lords Select Committee, above n 3 at [99].
House of Lords Select Committee, above n 3 at [104].
IM v LM, above n 591 at [77].
House of Lords Select Committee, above n 3 at [90].
Cases include: Hillingdon v Neary, above n 462, (which was referred to extensively in the House of
Lords report). In G v E and others [2010] EWHC 621, although a Local Authority’s decision to remove
a mentally incapacitated adult from a continuing placement with a person who had fostered him as a
child breached his rights under Article 5 and 8 of the European Convention on Human Rights, it would
be in his best interests to continue at the residential care unit to which he had been transferred until
there was a final hearing to consider whether he might be returned to the foster carer.
CRPD General Comment No. 1, above n 242 at [20]-[21].
Article 12(4) of the CRPD uses the formulation ‘rights, will and preferences’. The ALRC formulation
follows the spectrum of decision-making based on the will and preferences of a person, through to a
human rights focus in circumstances where the will and preferences of a person cannot be determined.
See Chapter 2 Supported Decision-making.
purposes.708 The Law Commission has recommended that there should be a presumption that
the person’s wishes and feelings will be followed, to make the best interests standard more
compliant with the CRPD.709 In Wye v Mr B Peter Jackson J defended the existing provision
in the MCA and questioned this proposal: 710
… my respectful view is that the Law Commission proposal would not lead to greater
certainty, but to a debate about whether there was or was not "good reason" for a
departure from the assumption. To elevate one important factor at the expense of others
would certainly not have helped the parties, nor the court, in the present case. All that is
needed to protect the rights of the individual is to properly apply the Act as it stands.
In New Zealand, the phrase “best interests” is found in both the PPPR Act and in Right 7(4)
of the HDC Code, but it cannot be regarded as a specified legal standard for decision-making
of the kind codified in the MCA.711 Nor does New Zealand law actively encourage supported
decision-making as envisaged in the CRPD, and in the case law of the COP applying s 4 of
the MCA.712
The UK Supreme Court decision of Aintree713 provides some insights into how the best
interests test might apply to end-of-life decision-making under the court’s inherent jurisdiction
in New Zealand.714 However, withdrawal or withholding of treatment type cases rarely come
before the High Court under the inherent jurisdiction in New Zealand. Most “best interests”
decisions in respect of a person’s care and welfare and property are made by those substitute
decision-makers appointed under the PPPR Act or the Family Court under that jurisdiction.
Or, they do not come before the courts at all, such as treatment and healthcare decisions that
need to be made for people who lack capacity under Right 74) of the HDC Code. The net
result is that the decision-making process for reaching “best interests” decisions – where the
decisions are made by others – is largely invisible.
The scheme of the MCA and its Code of Practice is pragmatic as it allows the great majority
of decisions to be made in the person’s best interests by informal decision-makers, such as
carers and family without recourse to the court or for the appointment of formal decisionmakers at all.715 It is also consistent with supported decision-making principles under the
CRPD, to provide reasonable accommodation of support measures that are tailored to an
individual’s needs.716 To this end, New Zealand should develop a decision-making standard
that is similarly consonant with both human rights obligations and the need to ensure there is
a clear and transparent process for decision-making that takes into account a person’s will
and preferences.
Law Commission, above n 199 at 165.
Law Commission, above n 199 at 164.
Wye Valley v Mr B, above n 172 at [17].
There has been limited discussion about the meaning of “best interests” in the New Zealand context
within the parens patriae jurisdiction, see Re G [1997] 2 NZLR (HC) and Auckland Healthcare Services
v L [1998] NZFLR 998 (HC).
See Re M (Best Interests) and Wye Valley v Mr B, case examples discussed in Chapter 2E Supported
decision-making in practice and in English case law.
Above n 164.
N Peart “Withholding Treatment” [2014] NZLJ 117 at 119.
Interview with Lady Brenda Hale, Deputy President, Supreme Court of the United Kingdom (A Douglass,
London, 6 May 2015).
B Hale, discussing discrimination on the grounds of not providing reasonable accommodation (Toulmin
Lecture, Kings College London, 12 March 2015).
1. Best interests should be codified as a standard for decision-making which should
a) taking into account the person’s will and preferences, and all relevant
circumstances, largely modelled on the best interests framework in s 4
of the MCA.
b) in determining what is in the person’s best interests, the decision-maker
would be required take a series of steps, including, so far as practicable,
supporting the person to participate as fully as possible in the
determination of what would be in their best interests.
c) consideration given to the establishment of a presumption in favour of
the person’s will and preferences in respect of a decision, where their
preferences can be reasonably ascertained, unless there is compelling
evidence that following their preferences would have serious adverse
consequences for them.717
d) a general principle of proportionality should apply: the greater the
departure from the person’s reasonably ascertainable will and
preferences, the more compelling must be the reasons for such a
The best interests standard would have to be followed by those required to
make decisions for others. It would apply across the operation of revised adult
guardianship legislation (a reformed PPPR Act), as well as in the operation of
Rights 5, 6 and 7 of the HDC Code, where a person lacks capacity to consent
to, or refuse health or disability services.
Appointment of health and disability advocates to provide support to the
person who lacks capacity to assist them to participate as fully as possible in
any relevant decision. This would complement the consultative aspect of
supported decision-making.718
An accompanying Code of Practice with guidance for decision-makers on the
best interests standard, including how to assess a person’s best interests in
accordance with their rights, will and preferences, and how to support the
person and their involvement in any decision that affects them.719
S v S (Protected Persons) [2009] WTLR 315, Hazel Marshall QC presumption test and proposal by the
English Law Commission (see Ruck Keene and Auckland, above n 686 at 295), currently under
consultation. Amendments to the 2015 Northern Ireland Mental Capacity Bill were proposed by
researchers associated with the Essex Autonomy Project (University of Essex, England), in conjunction
with its ongoing “three jurisdictions” study of approaches to capacity legislation in England and Wales,
Scotland and Northern Ireland. The amendments were prepared by W Martin (Director of the Essex
Autonomy Project) and A Ruck Keene (Thirty Nine Essex Chambers).
See for example, the Independent Mental Capacity Advocates (referred as “IMCAs”) appointed under s
36 of the MCA and accompanying regulations. This would be an expansion of the current role of health
and disability advocates under the Health and Disability Commissioner Act 1994.
See for example, MCA Code of Practice, above n 285 at Chapter 3: How should people be helped to
make their own decisions?
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