Approaches to the best interests of children and adults differ

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

In 1976, a court was asked whether an 11 year old girl, D, with Sotos syndrome should be sterilised. The application was made by an educational psychologist to prevent a sterilisation that had been arranged between D’s widowed mother and a gynaecologist, supported by a paediatrician. The court heard that D’s Sotos syndrome was associated with epilepsy, clumsiness, emotional lability and a tendency to aggression. Her IQ was around 80, a rating which was not necessarily incompatible with her raising a child, or coping reasonably well in everyday life.

The judge noted the likelihood that, given time, D would acquire the capacity to choose for herself whether she wished to exercise her ‘basic human right to reproduce’. The court attached significance to evidence that later realisation of her sterilisation might lead D to ‘frustration and resentment... that could be devastating’. The judge found that this was not a matter which fell within a doctor’s sole judgement, nor one that could be wholly determined by a parent. The proposed sterilisation was considered unlawful, and the judicial decision was set out in the terms of D’s best interests.

In adult practice, best interests are also prevalent, but only at the point where a patient loses his or her capacity. We are not entitled to make best interests decisions for a capacitous patient. In re F was a House of Lords case in 1989 concerning another proposed sterilisation, that of a 36 year old woman who had been an inpatient in a mental hospital since the age of 14. She had very severe learning difficulties leading her to lack capacity to decide upon sterilisation. She had formed a relationship with a male patient, and the hospital viewed the effects on her of potential pregnancy as ‘disastrous’.

The case is notable for one of the Law Lords revealing ‘...the startling fact that there is no English (law) on ...the question whether...medical treatment can lawfully be given to a person ...with incapacity’. In finding that sterilisation was consistent with F’s best interests, the case established the phrase as inseparable from adult incapacity in the common law, ultimately codified into the Mental Capacity Act 2005 that provides the legal framework for us today. The MCA sets out best interests, and provides both a statutory checklist of common factors that must be considered and a relevant section in the Code of Practice.

Clinicians should beware that the effects of ‘best interests’ differ between children and adults. Without doubt, the medical, social, family, spiritual and many other matters relevant to best interests are common to both groups. But the effects of applying these best interests to decisions relating to the patient may be very different. Most strikingly, whilst best interest considerations are engaged only when an adult lacks capacity, they can often be invoked in childhood despite the opposition of a competent child or capacitous young person. Stark clinical situations include those where blood product transfusion is ordered by a court in the teeth of resolute objection of the child; enforced heart transplantation has also been recorded, albeit many years ago.

Another difference relates to who determines the best interests of the individual. In childhood, those with parental responsibility are the natural candidate to lead this process, and are usually readily available. In adult practice there is usually no obvious legal proxy. In the absence of a donee of a Lasting Power of Attorney for health and welfare (or the very rare court-appointed deputy) only the clinician has authority to determine an adult’s medical best interests, although an Advance Decision or advance statement from the patient created prior to incapacity may provide the information required. In this instance the clinician must seek out where best interests lie, interrogating any reasonable source of information. Whilst the ‘next of kin’ has no legal status, this is certainly a person who may act as the first port of call to identify an incapacitated adult’s best interests.

Clinicians accustomed to determining best interests after reference to those befriending an incapacitous adult will need to take a different approach to a child. Those with parental responsibility are very likely to have a determinative view of their child’s interests, and the uncomfortable truth remains that actions may be taken in the best interests of a child which directly contradict their competent or capacitous wishes.

No-one can currently make a decision for me in my ‘best interests’. I am free to make mistakes and suffer the consequences. But if and when I lose my capacity to make a specific choice, I’d be most grateful if someone would make a good decision on my behalf.

Robert Wheeler
Department of clinical law
June 2020