Abstract
The ‘best interests’ standard is a highly seductive standard in English law. Not only does it appear to be fairly uncontroversial but it also presents as the most sensible, objective and ‘fair’ method of dealing with decision making on behalf of those who are perceived to be the most vulnerable within society. This article aims to provide a critical appraisal of how the standard has been applied within family law, to outline how the standard is to be applied within healthcare law and, finally, to assess the relevance of the family law experience of the best interests standard to the operation of the standards as envisaged by the MCA.
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Notes
CA 1989 s7 (1).
So-called ‘Gillick competent’ children. Derived from Gillick v West Norfolk and Wisbech Area Health Au thority [4] and meaning a child who “reaches a sufficient understanding and intelligence capable of making up his own mind on the matter requiring decision” (per Lord Scarman at 186).
Article 8, gives a right to respect for “private and family life” subject to the exceptions set out in paragraph 2. Art 8(2). To be justified, any interference with Article 8 rights must be prescribed by law, pursue a legitimate aim of a kind set out in the Article; and be necessary and proportionate.
Section 6 of the HRA 1998 makes it unlawful for public authorities such as local authorities, the police and the courts to act in a way which is incompatible with the Convention rights and, significantly, this will include a failure to act. Further s3 provides that legislation must, so far as is possible, be read and given effect in a way which is compatible with the Convention rights. If this is not possible then a declaration of incompatibility may be made under s4. Thus it is argued that the paramountcy principle as it is currently conceived and applied requires reinterpretation under s3 (1) HRA in accordance with the interpretative obligation under that section and also with the courts’ duty under s6 (1), taking account of the relevant Strasbourg jurisprudence under s2.
The central and determining metaphors in family law have become the welfare of the child and the importance of the father as an instrument of welfare and as an individual who earns legal standing. The mother seems to lose her standing...it is not clear to me that there is any longer a language available for mothers to voice their subject position in law. There is an erasure taking place which is based on a form of silencing which arises out of giving the legitimate modes of expression to those who speak of welfare...and those who speak of the significance of fatherhood.
At paragraph 4.5.
Code of Practice at paragraph 4.4.
Code of Practice at paragraph 5.25.
Supported by s1 (4), which states that a person is not to be treated as unable to make a decision merely because he makes an unwise decision.
This function can be performed by a number of people depending upon the circumstances and will include, the carer, healthcare staff, paid carers and those acting under a Lasting Power of Attorney. Note, that in the medical context the decision maker judgment is subject to the Bolan test. See the Code of Practice paragraphs 5.8–5.12 for further guidance on this point.
Although the parties may seek expert evidence in the event of disputes amongst the professionals involved in the matter, particularly where the dispute relates to medical treatment.
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I would like to thank John Coggan and the anonymous referees for their helpful comments when drafting this article.
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Choudhry, S. Best Interests in the MCA 2005—What can Healthcare Law Learn from Family Law?. Health Care Anal 16, 240–251 (2008). https://doi.org/10.1007/s10728-008-0084-x
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DOI: https://doi.org/10.1007/s10728-008-0084-x