Medical Law

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decision is valid and effective, the result is that the doctor would not be accountable if a specific treatment is withdrawn from the patient and guidance can also be sought form the court if it is suitable.



The case of Bland[6] took the concept of 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...