'Best Interests' Decision-Making and the Role of the Court in Protecting Patients with Prolonged Disorders of Consciousness

Tanner, Adam (2022). 'Best Interests' Decision-Making and the Role of the Court in Protecting Patients with Prolonged Disorders of Consciousness. PhD thesis The Open University.

DOI: https://doi.org/10.21954/ou.ro.0001429a


The current law and practice surrounding decision-making for adult patients who lack capacity, because they are in a prolonged disorder of consciousness, leaves these vulnerable patients without adequate protections to ensure their voices are heard. The Mental Capacity Act 2005 and subsequent case law have established that the test to be applied in such cases is whether the decision being made is in the "best interests” of the patient. This thesis looks at how the legal test of best interests is understood and how it is used in practice by doctors and lawyers. It argues that there is a critical misunderstanding of what is meant by best interests, and as a result, vulnerable patients are not having their rights protected.

The main thrust of this thesis stems from empirical research into how decisions are made in practice by both clinicians and lawyers; this research takes the form of a series of interviews with leading practitioners and a number of observations of Court of Protection hearings to see first-hand whether decision-makers are following the established law.

The empirical work highlights the levels of misunderstanding and poor application of the best interests standard. The interviews identified that the proportion of professionals who do not have an adequate understanding of the law relating to decision-making is perhaps even worse than has been stated in some previous pieces of research. The observations of the Court of Protection indicate that there is a wide discrepancy between what professionals say they do and what they actually do. These observations also uncovered several problems in the current system such as the length of delays and the weight given to expert evidence.

This thesis concludes that the law is ultimately misunderstood and incorrectly applied on a routine basis by people whose job is to protect vulnerable parties. The recent developments in the law, by the Supreme Court, potentially go against the foundations of why the Mental Capacity Act 2005 was introduced. There is further consideration as to what future reforms are needed to ensure a patient-centred decision-making framework.

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