Consideration of Wishes Feelings and Beliefs in Determining

Introduction:

One of the principles laid out in the Mental Capacity Act (MCA 2005) is that the “act done or any decision made “for or on behalf of a person who lacks capacity must be done, or made, in his best interests”. Section 4(2) requires that any determination of an act or decision must consider all relevant circumstances and according to Section 4(1) must not be based on the age or appearance or unjustified assumptions about their best interest based on their condition or behaviour. In this light, this essay will assess the extent of the weight given to the wishes, feelings, values and beliefs of the person while determining the best interest of the person.

The liberty of a person lacking mental capacity can be deprived as provided under Section 4A(3) giving effect to a court order, Section 16(2)(a) regarding their welfare; Schedule A1 regarding hospital and care home residents; Schedule AA1 regarding arrangements to care and treat the person; and Section 4B regarding life-sustaining treatment or vital act. Decision related to the permitted deprivation of liberty, as mentioned above, must be in the best interest of the person must be the priority after the court is satisfied based on the balance of probabilities, that the person lacks capacity. This principle covers all aspects of financial, personal welfare and healthcare decision-making and actions. However, the government finds it difficult to measure the progress of the impact of the MCA 2005 and that there is no dedicated and regular monitoring of the implementation of the Act. Marshall and Sprung

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1. The Mental Capacity Act 2005, s1.
2. King's College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80, [2015] MHLO 125
3. The Department for Constitutional Affairs, ‘Mental Capacity Act 2005: Code of Practice’ (2007) accessed 18 August 2021 .
4. The House of Lords, ‘Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005’ (2014) accessed 18 August 2021 .

(2016), while conducting a review of the best interest principle, cited finding of the House of Lords’ 2014 post-legislative review that the principles of the Act are not sufficiently practiced by health practitioners as they lack knowledge, understanding and awareness. Marshall highlighted that taking decisions on behalf of another person is stressful and complex and hence highlighted the importance of support from a wider multidisciplinary team and necessary legal advice.

The House of Lords pointed out that the best interest principle is problematic in terms of its implementation. This is also supported by the research findings of Taylor (2016) that there is confusion regarding the meaning and application of the principle in the form of judicial interpretation and complexities in the decision-making regarding the use of the best interest principle in clinical practice. Taylor, thus, argued that the confusion and the risk-aversive practices indicate a potential of compromising the rights and interests of a person lacking mental capacity. Taylor observed that the interpretation and implementation of 'best interests' may be conflated with clinicians’ evaluation of the 'best medical interests'. This is also supported by the finding of the House of Lords that state that the principle is often interpreted in a medical/paternalistic sense, which is not aligned with what the MCA 2005 intended. One Dr Claud Regnard stated that 'best interests is probably the most abused and misunderstood phrase in health and social care’. This has led to poor decision-making.

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5. Helen Marshall and Sally Sprung, ‘The Mental Capacity Act: 'Best interests'-a review of the literature’ (2017) 22(8) Br J Community Nurs 384-390.
6. The House of Lords, ‘Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005’ (2014) accessed 18 August 2021 https://publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/13907.htm#a22>
7. Helen J Taylor, ‘WHAT ARE 'BEST INTERESTS'? A CRITICAL EVALUATION OF 'BEST INTERESTS' DECISION-MAKING IN CLINICAL PRACTICE’ (2016) 24(2) Med Law Rev 176-205.
8. The House of Lords, ‘Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005’ (2014) accessed 18 August 2021 https://publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/13907.htm#a22>

The case of Montgomery, is cited here in support of the findings and observation mentioned above. The claimant, Ms. Montgomery was diabetic when she gave birth to a baby under the care of Dr McLellan. The baby suffered severe birth trauma due to shoulder dystocia, which is a well-recognised complication of vaginal delivery in diabetic women. The issue here is that Dr. McLellan did not warn Montgomery of the risk and did not offer her the choice of selecting a caesarean section. This judgment in this ruling also shows that the best interest principle in the context of the case overrides the Bolam principle, which states that a doctor cannot be held negligent if they acted at the level of responsibility and skills of their professional peers.

The exercise of choices and consent must be values-based shared decision-making, as what Hughes and colleagues (2018) observed. They state that values of all concerned people should be heard to ensure disclosure of necessary risk. There are, thus, elements derived from the Montgomery case, which include disclosure of material risks and benefits for intervention purposes and choices of reasonable alternative, and a dialogue between the clinician and patient.

The House of Lords cited various instance when the principle is given a medical sense. A member of Headway, a charity for brain injury patients, whose sister was in a minimally conscious state after a catastrophic brain injury, informed that the medical staff the 'best interests' decision as a 'clinical decision'. The staff took it as

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9. Montgomery v Lanarkshire Health Board [2015] UKSC 11.
10. Bolam v Friern Hospital Management Committee [1957] 1 WLR 583.
11. Julian C. Hughes et al. ‘The Montgomery ruling, individual values and shared decision-making in psychiatry’ (2018) 24(2) BJPsych Advances 93-100.
12. The House of Lords, ‘Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005’ (2014) accessed 18 August 2021 https://publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/13907.htm#a22>.

a matter of clinical judgment. The staff were not interested in what the family members knew about the sister and her wishes. One Moira Fraser of the Carers Trust informed that medical professionals pick and choose the situation when to involve the family members. Any families who do not agree with the medical decision were excluded from decision making as the staff treated them as not acting in the best interests of the patient. This is totally against the consideration of all relevant consideration before deciding based on best interest principle. For instance. The decisions must consider the legal, ethical and practice context including assessment of the person’s background, any previously expressed wishes and values, their views on current and next events, views of people interested in the case and negotiation between facts and opinions.

Lady Justice in Aintree v James stated that while make a best interest decision, consideration must be given to the wishes, feelings, beliefs and values of and the things important to the patient. They constitute the component in making the choice that is right for them as an individual human being. The decision maker must make the decision from the perspective of a person lacking mental capacity.in the circumstances they are in. Thus, in F v West Berkshire Health Authority, it was held lawful and in the best interests of the person who lacks mental capacity to conduct a medical treatment. However, it is fact sensitive subjected to the degree of incapacity and the person’s strength and consistency of their views; the effect on the

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13. Ibid.
14. Rachel Hubbard and Kevin Stone, The Best Interests Assessor Practice Handbook (Policy Press 2018) 94.
15. Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67
16. Ibid, at 45.
17. Charlotte Emmet and Julian C Hughes, ‘Best Interest’ in Anthony Holland, Michael Gunn, and Rebecca Jacob (eds), Mental Capacity Legislation: Principles and Practice (Cambridge University Press 2019) 35.
18. F v West Berkshire Health Authority [1989] 2 AC 1.

person if they thought their wishes were not being implemented; and the extent to which their wishes and feelings are rational or sensible, or could be accommodated in overall assessment of best interest by the court. Emmet and Hughes (2019) observed that the best interest principle of the MCA 2005 has a strong element of a ‘substituted judgment’. This means that a person determining the best interest of another person who lacks capacity must set aside their own beliefs, feeling and values and substitute them with the wishes, beliefs, values and feelings of the other person and all other relevant factors.

The UN Committee on the Rights of Persons with Disabilities treats the test employed regarding best interest principle as being a functional test for capacity, which it rejects. It proposes a 'will and preferences' paradigm instead of the 'best interests' paradigm. It proposes for abolishing all kinds of substitute decision-making regimes, such as the one found in the best interest standard. In this regard, Donnelly (2016) proposes for a stronger legislative endorsement of will and preferences. She proposes for a greater support mechanism. However, she does not agree to the Committee’s proposition of abolishing all kinds of substitute decision-making as she argues that the best interest has certain revolutionary potential, which can be realised through a legislative reform and courts’ intervention. Adopting a best interest principle may not require giving effect to the wishes and feelings of a person lacking mental capacity. Lady Hale supports this view when she states that it is still a best interests test and not a substituted

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19. ITW v Z [2009] EWHC 2525 (Fam).
20. Charlotte Emmet and Julian C Hughes, ‘Best Interest’ in Anthony Holland, Michael Gunn, and Rebecca Jacob (eds), Mental Capacity Legislation: Principles and Practice (Cambridge University Press 2019) 35.
21. Mary Donnelly, ‘Best Interests in the Mental Capacity Act: Time to say Goodbye?’ 2016 24(3) Med Law Rev 318-332.
22. Ibid.
23. Ibid.

judgement test, and that accepting the preference of the concerned person forms an important component in deciding the best interest.

To reiterate, the best interest principle covers all aspects of financial, personal welfare and healthcare decision-making and actions. It must consider all relevant circumstances before making a decision depriving liberty of the person who lacks mental capacity. For example, the best interest principle cannot be misused by the police authorities to arrive at a desired decision. A police officer must not treat a person as unable to take decisions unless they have taken all the practical steps to help that person to do so without any success. MCA 2005’s best interest principle will here be relevant when police officers deal with a person who lack mental capacity in an emergency situation. However, despite the rules, policy measures and efforts, it has been found that there is an increase contact between the police and people who lack mental capacity or who are mentally ill. It is observed that the number of people detained under the Mental Health Act 1983, s136 (‘removal etc of mentally disordered persons without a warrant’) has increased. Thomas, Jones and Hunt (2019), in reference to data related to the Hampshire Constabulary, found that the ambulance service is increasingly detaining people in mental crisis using the MCA 2005 and taking them to A&E Departments. At the national level, police officers are also doing the same. They found that most people contacting the Hampshire Constabulary have delusions. Thus, they observed that it should not likely result to a

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24. Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, at 24.
25. The Department for Constitutional Affairs, ‘Mental Capacity Act 2005: Code of Practice’ (2007) accessed 18 August 2021 .
26. Metropolitan Police, ‘Information Rights Unit: The Use of Section 4 of the Mental Capacity Act 2005’ (2019) accessed 18 August 2021 .

police response. The deprivation of liberty of such people cannot be justified if their human rights are not taken in account as a component of applying the best interest principle. This holds true for other institutions or agency involving people who lack mental capacity. For example, social workers who determine mental capacity of a person and determine best interest decision on behalf of that person must adopt a legalistic, actuarial and rights-based risk assessment approach. In regard to older people with dementia, case workers must account for the relationship between moral and legal discourse while intervene in case of issues involving determination of mental capacity. McDonald states that the risk-based and actuarial approach dominate the actual practice. However, she argues that the rights-based approach is necessary to support such older people in their choices of decision; their exercise of citizenship; in countering stereotypes and also promoting their well-being.

The best interest principles priorities the fundamental rights of the person concerned regarding their liberty of making their healthcare, financial, personal and property-related choices. Special account must be given to whether the principles of best interests are uniform across all these choices. Donnelly (2016) argues that it differs. Decisions regarding property and affairs differ from those regarding health and welfare. She observed that since the MCA 2005, decisions concerning ‘property and affairs' have been determined using the same standard applied in health and welfare decision. However, the decision in the matter of Re G (TJ), shows that it cannot be so as the standards are different.

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27. Allyn Thomas, Rachel Forrester-Jones, and Peter Hunt, ‘Exploring the growth in Police engagement with those who are mentally ill and the developing use of the Mental Capacity Act as an alternative to Section 136 of the Mental Health Act’ (2021) 15(1) Policing: A Journal of Policy and Practice 635-648.
28. Ann McDonald, ‘The impact of the 2005 Mental Capacity Act on social workers' decision making and approaches to the assessment of risk’ (2010) 40(4) British Journal of Social Work 1229-1246.
29. Re G (TJ) [2010] EWHC 3005.

Donnelly states that the judgment provides insights regarding the operation of the MCA 2005’s best interests standard showing the key differences between the decisions regarding property and affairs and those regarding health and welfare. This case concerns an application to the Court of Protection for an order to make maintenance payments from the funds of a woman lacking capacity in favour of her daughter. The common ground was that the order could be made if it meets the requirement of MCA 2005 that the order was in the best interests of the woman. Morgan J, however, elaborated the scope of best interest and the link between best interests and substituted judgment. According to him, best interests is not defined, which suggests that its application should be responsive to a particular issue and the facts of each case. He stated that the word “interests” cannot be confined to matters of self-interest. Hence, a court can decide that it is in the interests of the concerned person to act altruistically. The ultimate test is the best interests. However, a substituted judgment is also relevant and cannot be ignored. In Airedale National Health Service Trust v Bland, it was ruled that a substituted judgment may be subsumed within best interests. Thus, Morgan J held that the altruistic wish of the person, which may be directly or indirectly self-interested, is a relevant factor. He stated that payment of the maintenance would be what the woman would have wanted if she had capacity to make the decision. This may be a ‘substituted judgment’, but it can be subsumed withing the concept of best interests. As there are no countervailing factors, the order for maintenance payments can be made in the

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30. Mary Donnelly, ‘Best Interests in the Mental Capacity Act: Time to say Goodbye?’ 2016 24(3) Med Law Rev 318-332.
31. Re G (TJ) [2010] EWHC 3005.
32. Ibid.
33. Airedale National Health Service Trust v Bland [1993] AC 789.

best interests of the woman. This is a material decision not based on vulnerability of the woman. Bennett J in Re G, stated that decisions regarding residence and contact arrangements can be made on behalf of a young woman who had regained capacity to make the decisions due to the protective arrangements ordered by the court. This is allowed in circumstances that where if the arrangements are lifted, the woman’s organic impairments and destructive influence of her father could worsen her condition leading to a consequential lack of her mental capacity.

The rule of best interest is based on the ground that it will give a concerned person the right to participate in decision making that directly impacts them. Leinonen (2016) states that while participating, the views of the person are considered. This does not mean that their decision or views are carried out. It is about respecting their autonomy to give weight to their own views and values. This is necessary when dealing with a person who lacks capacity or with limited capacity. The question here is whether the best interest principle under Section 4 of MCA 2005 gives complete autonomy to the concerned person. In the light of the discussion above and the cases mentioned, the autonomy seems to be defined as a right to participate and not complete autonomy because the person lacks mental capacity. Leinonen, thus, states that the right to participate, as is demonstrated in the discussion so far, seems to represent a weaker right than the compete autonomy or self-determination. Thus, the focus is now on the wishes, beliefs and values that arise not from autonomy. These are considerations to be accounted for while considering the

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34. Re G (TJ) [2010] EWHC 3005.
35. Re G [2004] EWHC 2222 Fam.
36. Anna Mäki-Petajä-Leinonen, ‘Protecting a person with dementia through restrictions of freedom? Notions of autonomy in the theory and practice of elder care’ in Sanna Mustasaari and Anna Mäki-Petajä-Leinonen (eds), Subjectivity, Citizenship and Belonging in Law: Identities and Intersections (Taylor & Francis 2016) 155.
37. Anna Mäki-Petajä-Leinonen, ‘Protecting a person with dementia through restrictions of freedom? Notions of autonomy in the theory and practice of elder care’ in Sanna Mustasaari and Anna
38. Anna Mäki-Petajä-Leinonen, ‘Protecting a person with dementia through restrictions of freedom? Notions of autonomy in the theory and practice of elder care’ in Sanna Mustasaari and Anna
39. Anna Mäki-Petajä-Leinonen, ‘Protecting a person with dementia through restrictions of freedom? Notions of autonomy in the theory and practice of elder care’ in Sanna Mustasaari and Anna


application of best interest principle. However, it could be seen here the application of the best interest standard is not uniform and it differs from what is followed regarding medical care and those in other personal, financial and property-related affairs. The Law Commission stated that it is fragmented, incoherent and inconsistent and differs in applying to cases, such as involving the problem of consent to medical treatment, disputes between estranged parents, residence, abuse, to name a few.

To conclude, the best interest principle currently represents a right to participate and less of respecting autonomy of a person lacking mental capacity. It calls for a legislative support for will and preferences. The principle is practiced as more of a ‘substituted judgment’ with lesser regard to the wishes of the person. It is rather surprising that no legislative reforms have been undertaken even after the House of Lords’ review and the Law Commission highlighting the flaws in the MCA 2005. The non-uniformity and inconsistency, demonstrated by the decision related to healthcare and those regarding other affairs, present a problematic implementation of Section 4 principle. This will continue posing a risk of compromising the rights and interests of a person lacking mental capacity unless a values-based shared decision-making process in place to give effect to choices and consent of those persons.

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40. Mäki-Petajä-Leinonen (eds), Subjectivity, Citizenship and Belonging in Law: Identities and Intersections (Taylor & Francis 2016) 155.
41. HMSO, ‘Mentally Incapacitated Adults and Decision-Making: An Overview’ The Law Commission: Consultation Paper No. 119.

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Bibliography

Cases

Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 6

Airedale National Health Service Trust v Bland [1993] AC 789.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 583

F v West Berkshire Health Authority [1989] 2 AC 1.

ITW v Z [2009] EWHC 2525 (Fam).

King's College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80, [2015] MHLO 125

Montgomery v Lanarkshire Health Board [2015] UKSC 11

Re G (TJ) [2010] EWHC 3005

Re G [2004] EWHC 2222 Fam

Books

Emmet C and Julian C Hughes, ‘Best Interest’ in Anthony Holland, Michael Gunn, and Rebecca Jacob (eds), Mental Capacity Legislation: Principles and Practice (Cambridge University Press 2019)

Hubbard R and Kevin Stone, The Best Interests Assessor Practice Handbook (Policy Press 2018)

Mäki-Petajä-Leinonen A, ‘Protecting a person with dementia through restrictions of freedom? Notions of autonomy in the theory and practice of elder care’ in Sanna Mustasaari and Anna Mäki-Petajä-Leinonen (eds), Subjectivity, Citizenship and Belonging in Law: Identities and Intersections (Taylor & Francis 2016)

Journals

Donnelly M, ‘Best Interests in the Mental Capacity Act: Time to say Goodbye?’ 2016 24(3) Med Law Rev 318-332

Hughes JC et al. ‘The Montgomery ruling, individual values and shared decision-making in psychiatry’ (2018) 24(2) BJPsych Advances 93-100

Marshall H and Sally Sprung, ‘The Mental Capacity Act: 'Best interests'-a review of the literature’ (2017) 22(8) Br J Community Nurs 384-390

McDonald A, ‘The impact of the 2005 Mental Capacity Act on social workers' decision making and approaches to the assessment of risk’ (2010) 40(4) British Journal of Social Work 1229-1246

Taylor HJ, ‘WHAT ARE 'BEST INTERESTS'? A CRITICAL EVALUATION OF 'BEST INTERESTS' DECISION-MAKING IN CLINICAL PRACTICE’ (2016) 24(2) Med Law Rev 176-205

Thomas A, Rachel Forrester-Jones, and Peter Hunt, ‘Exploring the growth in Police engagement with those who are mentally ill and the developing use of the Mental Capacity Act as an alternative to Section 136 of the Mental Health Act’ (2021) 15(1) Policing: A Journal of Policy and Practice 635-648

Reports

HMSO, ‘Mentally Incapacitated Adults and Decision-Making: An Overview’ The Law Commission: Consultation Paper No. 119.

Websites

Metropolitan Police, ‘Information Rights Unit: The Use of Section 4 of the Mental Capacity Act 2005’ (2019) accessed 18 August 2021 .

The Department for Constitutional Affairs, ‘Mental Capacity Act 2005: Code of Practice’ (2007) accessed 18 August 2021 .

The House of Lords, ‘Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005’ (2014) accessed 18 August 2021 https://publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/13907.htm#a22>

The House of Lords, ‘Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005’ (2014) accessed 18 August 2021 .

The House of Lords, ‘Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005’ (2014) accessed 18 August 2021 .

The House of Lords, ‘Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005’ (2014) accessed 18 August 2021 .