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Report No. 196

(20) Re A (Male Sterlisation), 2000(1)FLR 549: (Butler-Sloss & Thorpe L.JJ)

Butler-Sloss LJ stated that 'best interests' encompass 'medical, emotional and all other welfare issues'.

Thorpe LJ laid down the principle on the basis of which a Judge should decide the "best interests" of a patient. He said:

"There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal.

Pending the enactment of a checklist or other statutory direction, it seems to me that the first-instance Judge, with the responsibility to make an evaluation of the best interests of a claimant lacking capacity, should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case, an instance would be the acquisition of foolproof contraception. Then on the other sheet, the Judge should write any counter-balancing disbenefits to the applicant.

An obvious instance in this case would be the apprehension of risk and the discomfort inherent in the operation. Then the Judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise, the Judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the Judge conclude that the application is likely to advance the best interests of the claimant."

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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