From ‘Doctor Knows Best’ to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions About Their Medical Treatment

35 Pages Posted: 13 Mar 2018

See all articles by Emily Jackson

Emily Jackson

London School of Economics - Law School; London School of Economics - Law School; Queen Mary University London - School of Law

Date Written: March 2018

Abstract

In 1989, the House of Lords first derived a ‘best interests’ test for the medical treatment of adults who lack capacity from the doctrine of necessity and, now codified, the test continues to apply today. The Mental Capacity Act 2005 sets out a non‐exhaustive checklist of relevant considerations, but it gives no particular priority to the patient's wishes. There is also no formal expectation that the patient will participate directly in any court proceedings in which her best interests are to be determined. This article will consider the advantages and disadvantages of providing additional guidance to decision‐makers in order to help them navigate both taking seriously the wishes of people who lack capacity and, at the same time, not abandoning patients who need help and support. More specifically, this article advocates formalising current best practice in the Court of Protection through the introduction of a series of rebuttable presumptions, or starting points.

Keywords: Mental capacity, best interests, Court of Protection, medical treatment, dignity

Suggested Citation

Jackson, Emily and Jackson, Emily, From ‘Doctor Knows Best’ to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions About Their Medical Treatment (March 2018). The Modern Law Review, Vol. 81, Issue 2, pp. 247-281, 2018, Available at SSRN: https://ssrn.com/abstract=3139061 or http://dx.doi.org/10.1111/1468-2230.12328

Emily Jackson (Contact Author)

London School of Economics - Law School ( email )

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020 7955 7256 (Phone)

London School of Economics - Law School ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom
020 7955 7256 (Phone)

Queen Mary University London - School of Law ( email )

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London, WC2A 3JB
United Kingdom

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