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Report No. 196

(3) 'Best of interests'

Question of 'best interests' have to be decided by a doctor in the case of (a) incompetent patients and (b) in the case of competent patients who are unable to take an informed decision:

It is true, as stated in Lord Goff in Airedale 1993(1) All ER 821 (HL), that on the principle of self-determination, if an adult patient of sound mind refuses, however, unreasonably, to consent to treatment or care by which his life could be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in the best interests of the patient, to do so. To this extent, the principle of sanctity of life must yield to the principle of self-determination. Such refusal by a patient may also be by way of an advance directive.

But, Lord Goff also stated, after referring to In re F (Mental Patient: Sterilisation) 1990(2) AC 1 that, in the case of an unconscious patient, the doctor may treat or continue to treat him if it is in the patient's best interests. The same principle applies when a doctor decides to stop the treatment in the best interests of the patient. He referred to Thomas J in Auckland Area Health Authority vs. AG: 1993(1) NZLR 235 to say that if a doctor decides in the case of a cancer patient, a particular surgery is not in the best interests of the patient, but only palliatives have to be given, it is lawful for him not to go for surgery.

When the doctor's treatment of his patient is lawful, the patient's death is regarded as exclusively caused by the disease to which it could be attributed. After quoting from the opinion of Prof. Kennedy and judgment of Thomas J, Lord Goff stated that the question is not whether the doctor should take a course which would kill a patient, but the question is "whether in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment and care". In the case of an incompetent patient, the straight forward test laid down in In re F (1990)(2) AC1 was whether that was in the best interests of the patient.

Lord Browne-Wilkinson also so stated in Airedale that In re F 1990 (2) AC 1, both Lord Brandon of Oakbrook (p 64) and Lord Goff (at p 75, 77) and made it clear that the right to administer invasive medical care is wholly dependent upon such care being in the interests of the patient. The doctor's decision whether invasive care is in the best interests of the patient falls to be assessed by reference to the test laid down in Bolam vs. Frien Hospital Management Committee: 1957(1) WLR 582, viz being a decision taken in accordance with a practice accepted, at the time, by a responsible body of medical opinion'.

He concluded that 'if there comes a stage when the responsible doctor comes to the reasonable conclusion (which accords with the view of a responsible body of medical opinion), that further continuance of an intrusive life support system is not in the 'best interests' of the patient, he can no longer lawfully continue that life support system for to do so would amount to crime of battery and the tort of trespass to the person.

In Re J (a minor)(Wardship: medical treatment): 1990(3) All ER 930, Lord Donaldson M.R. stated that Court, in deciding to authorize that treatment need not be given, 'the Court had to perform a balancing exercise in assessing the course to be adopted in the best interests of the child, looked at from his point of view and giving the fullest possible weight to his desire, if he were in a position to make similar judgment, to survive, and taking into account 'the pain and suffering and quality of life' which he would experience if life was to be prolonged and pain and suffering involved in the proposed treatment.

Having regard to the invasive and hazardous nature of re-ventilation, the risk of further deterioration of Mr. J if he was subject to the extremely unfavourable progress with or without the treatment, it was in J's best interests that authority for reventilation is withheld.

In re B (A minor)(Wardship: Sterilisation) 1988 (1) AC 199, in the case of sterilization of a mentally retarded 17 year ward, who had only the understanding capacity of a 6 year child, all the courts, upto the House of Lords, were of the view that the child be sterilized in her best interests because pregnancy and childbirth would be totally not in her interests. It was held that sterilization would be in the best interests of the 16 year old child.

In re F (Mental Patient)(Sterilisation) 1990(2) AC 1, (referred to in Airedale), the patient was not a minor but even so, the Court's inherent jurisdiction was invoked (since the parens patriae jurisdiction was abolished in UK by statute) and it was held that sterilization was in the best interests of the patient. At common law, a doctor could lawfully operate or give other treatment to adults who were incapable of consenting to his doing so, provided the operation was in the best interests of the patient. The sterilization operation or treatment would be in their best interests only if it is carried out in order either to save their lives or to ensure improvement or prevent deterioration in their physical or mental health.

In re T (adult: refusal of medical treatment) 1992(2) All ER 649 (=1992(3) WLR 787) the patient T was a lady, injured in an accident and she was pregnant and required blood transfusion. She was brought up by her mother who belonged to Jehovah's witness school of thought. The patient refused blood transfusion. But, it was held that that the said decision was not her independent view, that she was more influenced by her mother, and hence the decision was not binding on the doctors who felt that it was in the best interests of the patient to be given blood transfusion.

In fact, at the emergency stage, the patient herself did not object. It was held that if an adult did not have the capacity, at the time of purported refusal and continued not to have the capacity, or if his or her capacity to take a decision had been over influenced by others, it was the duty of doctors to treat him or her in whatever way they considered, in the exercise of their clinical judgment, to be in his or her best interests.

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