In medical practice, the doctrine of informed consent is generally understood to have priority over the medical practitioner’s duty of care to her patient. A common consequentialist argument for the prioritisation of informed consent above the duty of care involves the claim that respect for a patient’s free choice is the best way of protecting that patient’s best interests; since the patient has a special expertise over her values and preferences regarding non-medical goods she (...) is ideally placed to make a decision that will protect her interests. In this paper I argue against two consequentialist justifications for a blanket prioritisation of informed consent over the duty of care by considering cases in which patients have imperfect access to their overall best interests. Furthermore, I argue that there are cases where the mere presentation of choice under the doctrine of informed consent is detrimental to patient best interests. I end the paper by considering more nuanced approaches to resolving the conflict between informed consent and the duty of care and consider the option of permitting patients to waive informed consent. (shrink)

In this issue of JCE, Douglas Diekema argues that the best interest standard (BIS) has been misemployed to serve two materially different functions. On the one hand, clinicians and parents use the BIS to recommend and to make treatment decisions on behalf of children. On the other hand, clinicians and state authorities use the BIS to determine when the government should interfere with parental decision-making authority. Diekema concedes that the BIS is appropriately used to “guide” parents in making (...) medical treatment decisions for their children. But he argues that the BIS is inappropriately used as a “limiting” standard to determine when to override those decisions. Specifically, Diekema contends that the BIS “does not represent the best means for determining when one must turn to the state to limit parental action.” He argues that this limiting function should be served by the harm principle instead of by the BIS.I contend that we should not reassign the BIS’s limiting function to the harm principle. In this article I make two arguments to support my position. First, the BIS has effectively served, and can serve, both guiding and limiting functions. Second, the harm principle would be an inadequate substitute. It cannot serve the limiting function as well as the more robust BIS. (shrink)

Volume 20, Issue 2, February 2020, Page 57-59.

The observed Taiwanese neonatal professionals' more conservative attitudes than their worldwide colleagues towards end-of-life (EOL) decision making may stem from cultural attitudes toward death in children and concerns about medicolegal liability. Healthcare practice is rooted in local culture and laws; however that should be adjusted to patients' best interests. Improving Taiwanese neonatal professionals' knowledge and competence in EOL care may minimize ethical dilemmas, allow appropriate EOL care decision making, avoid infants' suffering, and ease parents' bereavement grief.

Adults without the capacity to make their own medical decisions have their rights protected under the Mental Capacity Act in the UK. The underlying principle of the court's decisions is the best interests test, and the evaluation of best interests is a welfare appraisal. Although the House of Lords in the well-known case of Bland held that the decision to withhold treatment for patients in a persistent vegetative state should not be based on their best interests, judges (...) in recent cases have still held that the best interests of persistently vegetative patients demand that the right to die with dignity prevails over society's interest to preserve life. The basis of suggesting that it is in the best interests for one who is alive in peace to die in peace is weak. Even if it may not be in their best interests to live on, it may not be so to die either. The phrase ‘the right to dignity/to die with dignity’ has been misused as a trump card to justify the speculation that a vegetative patient would necessarily refuse to live on machines. Without disrespect to the court's decision, we argue that the use of the best interests test to authorise withdrawing/withholding treatment from persistently vegetative patients without an advance directive is problematic. We propose that the court could have reached the same decision by considering only the futility of treatment without working through the controversial best interests of the patient. (shrink)

Conscious but incapacitated patients need protection from both undertreatment and overtreatment, for they are exceptionally vulnerable, and dependent on others to act in their interests. In the United States, the law prioritizes autonomy over best interests in decision making. Yet U.S. courts, using both substituted judgment and best interests decision making standards, frequently prohibit the withdrawal of life-sustaining treatment from conscious but incapacitated patients, such as those in the minimally conscious state, even when ostensibly seeking to determine what (...) patients would have wanted. In the United Kingdom, under the Mental Capacity Act of 2005, courts decide on the best interests of incapacitated patients by, in part, taking into account the past wishes and values of the patient. This paper examines and compares those ethicolegal approaches to decision making on behalf of conscious but incapacitated patients. We argue for a limited interpretation of best interests such that the standard is properly used only when the preferences of a conscious, but incapacitated patient are unknown and unknowable. When patient preferences and values are known or can be reasonably inferred, using a holistic, all-things-considered substituted judgment standard respects patient autonomy. (shrink)

Hospitalized patients lacking the mental capacity to consent to treatment may demand to be discharged from the hospital against medical advice. Forced custody of these patients, including the use of restraints, may be required if the plan is to proceed with treatment. This raises ethical concerns with regard to depriving people of their liberty. The determination of the wishes and values of the patient and her best interests may sometimes vary, depending on the assessor or the clinical team (...) entrusted to perform the evaluation. We therefore propose the following triad for clinicians when determining the best interests for this group of patients to ensure ethical and legal soundness as well as in providing consistency in approach. Firstly, the treatment should serve as a rescue response. Secondly, any restraint deployed must be proportionate with a foreseeable end. Her liberty and autonomy interests should be enhanced by the treatment. Thirdly, the patient’s family must be supportive. This paper analyzes the use of the triad approach on two clinical cases, both assessed as lacking in mental capacity to decide on treatment and insisting to be discharged. Using this approach, we could justify how the contrasting outcomes, one in which the voluntary discharge was acquiesced versus the other, which was not acquiesced, were reached. We also examine the compatibility of the triad approach with the obligations under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). (shrink)

This paper will discuss why and how social network sites ought to be used in surrogate decision making (SDM), with focus on a context like Singapore in which substituted judgment is incorporated as part of best interest assessment for SDM, as guided by the Code of Practice for making decisions for those lacking mental capacity under the Mental Capacity Act (2008). Specifically, the paper will argue that the Code of Practice already supports an ethical obligation, as part of (...) a patient-centred care approach, to look for and appraise social network site (SNS) as a source of information for best interest decision making. As an important preliminary, the paper will draw on Berg’s arguments to support the use of SNS information as a resource for SDM. It will also supplement her account for how SNS information ought to be weighed against or considered alongside other evidence of patient preference or wishes, such as advance directives and anecdotal accounts by relatives. (shrink)

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. (shrink)

In this issue of the Hastings Center Report, Moti Gorin, Steven Joffe, Neal Dickert, and Scott Halpern offer a comprehensive defense of the use of nudging techniques in the clinical context, with the aim of promoting the best interests of patients. Their argument is built on three important claims: Nudging is ubiquitous and inescapable in clinical choice situations, and there is no neutral way of informing patients about their treatment choices; many patients do not have authentic preferences concerning their (...) treatment choices, and those that do can easily resist nudging; and, finally, since many people lack authentic preferences and those that do can still act on their preferences, nudging in the patients’ best interest is justified. I agree with the authors that if these three claims stand up to scrutiny, then they will provide a justification for many types of clinical nudging. I am, however, skeptical as to whether the claims can be sustained, despite the valiant efforts of Gorin and colleagues. (shrink)

Where a decision has been made to stop futile treatment of critically ill patients on an intensive care unit – what is termed withdrawal of treatment in the UK – yet no doctor is available to perform the actions of withdrawal, nurses may be called upon to perform key tasks. In this paper I present two moral justifications for this activity by offering answers to two major questions. One is to ask if it can be in patients' best interests (...) for nurses to be the key actors in withdrawal of life‐sustaining treatment. The other is to ask if there is any reason that the nursing profession should not undertake such tasks if this is so. Both these questions require the resolution of weighty moral and philosophical issues. Thus, while offering a serious attempt to provide moral justifications for nurses undertaking withdrawal, this paper also invites debate over both the aim of task division between nurses and doctors, and how we might decide what is in the best interests of patients. (shrink)

On one conception of “best interest” there can only be one course of action in a given situation that is in a person’s best interest. In this paper we will first consider what theories of “best interest” and rational decision-making that can lead to this conclusion and explore some of the less commonly appreciated implications of these theories. We will then move on to consider what ethical theories that are compatible with such a view (...) and explore their implications. In the second part of the paper we will explore a range of possible criticisms of these views. And in the third part we will criticise the view that a court is always or even often in a good position to decide what the patient’s best interest is. In the fourth and final part we will put forward a reconstructive proposal aimed at saving whatever is sound in the “best interest” conception. (shrink)

Unrepresented patients are individuals who lack decision makingcapacity and have no family or friends to make medical decisions for them. This population is growing in number in the United States, particularly within emergency and intensive care settings. While some bioethical discussion has taken place in response to the question of who ought to make decisions for these patients, the issue of how surrogate medical decisions ought to be made for this population remains unexplored. In this paper, we argue that standard (...) applications of surrogate decision making principles in health care are not well suited to many unrepresented patients with long-term mental health diagnosis. We argue that when applied to this population, the substituted judgment standard, designed to preserve patient preferences and values, may lead to the exclusion of their preferences. We argue further that the application of the best interest standard runs the risk of leading to harmful cases of overtreatment or undertreatment. We offer an alternative interpretation of the best interest principle that is better able to promote the well-being of unrepresented patients, especially for those who lack capacity because of mental disorders. This alternative is based on the practices and principles of harm reduction and includes three components: emphasis on considering the expressed preferences of unrepresented patients, a focus on reducing harm as well as the delivery of clinical benefits, and a recognition of the importance of promoting trust. (shrink)

"Best interests" is widely accepted as the appropriate foundation principle for medico-legal decisions concerning treatment withdrawal from patients in persistent vegetative state (PVS). Its application appears to progress logically from earlier use regarding legally incompetent patients. This author argues, however, that such confidence in the relevance of the principle of best interests to PVS is misplaced, and that current construction in this context is questionable on four specific grounds. Furthermore, it is argued that the resulting legal inconsistency is (...) distorting both the principle itself and, more particularly, individual patient interests. (shrink)

Background In recent years, patient advocacy has emerged as a prominent concept within healthcare. How nursing students decide what is best for their patients is not well understood. Objective The objective is to examine nursing students' views on doing what is best for patients during their clinical experiences and how they seek to establish patient interests when providing care. Research questions guiding the interview were as follows: (1) What are nursing students' perceptions of patient interests? (...) (2) What factors influence nursing students' perceptions of advocating for patient’s interests? Research design Qualitative descriptive research using thematic analysis. Participants and research context Data was collected through individual online interviews with nine nursing students with clinical experience. Ethical considerations The study was approved by the University Research Ethics Committee. Participants provided digital informed consent. Results The students asserted that they are able to understand the patients' interests by placing emphasis on the patients' needs. They believe that it is crucial to adopt a collaborative strategy for the provision of care to meet these requirements. In addition, some of them expressed concern over the most effective methods of advocating for the interests of patients. Three themes were identified. (1) Focussing on patient needs first, (2) taking a collective approach, and (3) learning how to advocate. Conclusions Students understand and value the ethical commitments associated with advocating for the patient's best interest by considering factors such as prioritising the patient's needs, adopting a strategy that involves everyone, and acquiring the ability to undertake the advocacy role. Additionally, nursing education strategies in clinical contexts require additional study to inspire students to do what is in their patient’s best interests. (shrink)

The principle that physicians should always act in the best interests of the present patient is widely endorsed. At the same time, and often within the same document, it is recognised that there are appropriate exceptions to this principle. Unfortunately, little, if any, guidance is provided regarding which exceptions are appropriate and how they should be handled. These circumstances might be tenable if the appropriate exceptions were rare. Yet, evaluation of the literature reveals that there are numerous exceptions, (...) several of which pervade clinical medicine. This situation leaves physicians without adequate guidance on when to allow exceptions and how to address them, increasing the chances for unfairness in practice. The present article considers the range of exceptions, illustrates how the lack of guidance poses ethical concern and describes an alternative account of physician obligations to address this concern. (shrink)

In the western healthcare, shared decision making has become the orthodox approach to making healthcare choices as a way of promoting patient autonomy. Despite the fact that the autonomy paradigm is poorly suited to paediatric decision making, such an approach is enshrined in English common law. When reaching moral decisions, for instance when it is unclear whether treatment or non-treatment will serve a child’s best interests, shared decision making is particularly questionable because agreement does not ensure moral validity. (...) With reference to current common law and focusing on intensive care practice, this paper investigates what claims shared decision making may have to legitimacy in a paediatric intensive care setting. Drawing on key texts, I suggest these identify advantages to parents and clinicians but not to the child who is the subject of the decision. Without evidence that shared decision making increases the quality of the decision that is being made, it appears that a focus on the shared nature of a decision does not cohere with the principle that the best interests of the child should remain paramount. In the face of significant pressures toward the displacement of the child’s interests in a shared decision, advantages of a shared decision to decisional quality require elucidation. Although a number of arguments of this nature may have potential, should no such advantages be demonstrable we have cause to revise our commitment to either shared decision making or the paramountcy of the child in these circumstances. (shrink)

The purpose of this paper is to analyse the concept of 'best interest' in order to give nurses, who use it to justify their actions, a clear picture of what this means, and to identify the skills needed for doing so. The process for concept analysis developed by Walker and Avant was used in the analysis of data generated from the literature. Themes were identified from which the defining attributes, antecedents and consequences emerged. The congruence of the findings (...) with current values in nursing, such as promotion of patient autonomy, and the nurse as advocate, are discussed, together with the underpinning ethics theory. The skills needed for nursing practice are identified and recommendations for nurse education are made. (shrink)

This paper argues that the concept of best interests in the context of clinical decisions draws on concepts rooted in the philosophical discipline of axiology. Reflection on the philosophical origins enables a distinction to be drawn between those interests related to clinical goals and those global interests that are axiological in nature. The implication of this distinction is most clearly seen in the context of end of life decisions and it is argued here that greater weight ought to be (...) given to the positive requests, and not merely competent refusals, of patients at the end of life. (shrink)

The idea of a patient's best interests raises issues in prudential value theory–the study of what makes up an individual's ultimate (nonmoral) good or well‐being. While this connection may strike a philosopher as obvious, the literature on the best interests standard reveals almost no engagement of recent work in value theory. There seems to be a growing sentiment among bioethicists that their work is independent of philosophical theorizing. Is this sentiment wrong in the present case? Does value (...) theory make a significant difference in interpreting best interests? In pursuing this question, I begin with a quick sketch of broad kinds of value theories, identifying representatives that are plausible enough to count as contenders. I then explore what each account suggests in (1) neonatal treatment decisions, and (2) decisions for patients in persistent vegetative states. I conclude that while these accounts converge somewhat in their interpretations of best interests, they also have importantly different implications. (shrink)

This paper considers the role of the concept of best interests in the treatment of mental disorder. It considers the Mental Capacity Act 2005 where treatment of an incapacitated person’s mental disorder is authorized if treatment is in the patient’s own best interests. It also examines the Mental Health Act 1983 as amended by the Mental Health Act 2007 where treatment without consent of a detained patient is allowed where necessary for the patient’s health or (...) safety or for the protection of others. Under both statutory regimes treatment must be in the best interests of the patient. This paper argues that ‘best interests’ is open to interpretation to include treatment interventions carried out primarily to protect other people. (shrink)

In their article, van Gils Schmidt and Salloch defend the claim that physicians have a duty to protect the climate. The logic of the argument in broad terms is that (i) there is a relationship between climate change and the burden of disease, (ii) the healthcare sector is a significant emitter of global greenhouse gasses, thereby enhancing the burden of disease and (iii) since doctors are advocates of health and stakeholders in the healthcare sector, they have a duty to respond (...) to climate change. The authors recognise the ‘ethical basis for the claim of healthcare professionals having a special responsibility in climate change is far from being obvious’. The theoretical framework they choose for making this tentative link more apparent is Korsgaard’s theory of practical identities. The main argument of the authors seems to be that practical identities are pluralistic—a person can identify as a physician and environmentalist simultaneously—and the normative positions attributable to these identities may come into conflict. More than that, they claim that being an environmentalist is increasingly becoming …. (shrink)

Opt-out systems of postmortem organ procurement are often supposed to be justifiable by presumed consent, but this justification turns out to depend on a mistaken mental state conception of consent. A promising alternative justification appeals to the analogical situation that occurs when an emergency decision has to be made about medical treatment for a patient who is unable to give or withhold his consent. In such cases, the decision should be made in the best interests of the (...) class='Hi'>patient. The analogous suggestion to be considered, then, is, if the potential donor has not registered either his willingness or his refusal to donate, the probabilities that he would or would not have preferred the removal of his organs need to be weighed. And in some actual cases the probability of the first alternative may be greater. This article considers whether the analogy to which this argument appeals is cogent, and concludes that there are important differences between the emergency and the organ removal cases, both as regards the nature of the interests involved and the nature of the right not to be treated without one’s consent. Rather, if opt-out systems are to be justified, the needs of patients with organ failure and/or the possibility of tacit consent should be considered. (shrink)

In W v M and Others (Re M) the Court of Protection considered whether withdrawal of artificial nutrition and hydration was in the best interests of a person in minimally conscious state. The Mental Capacity Act 2005 states that in determining best interests the decision-maker must consider, so far as is reasonably ascertainable, the patient's wishes, feelings, beliefs and values. Baker J. indicated that a high level of specificity is required in order to attribute significant weight to (...) these factors. It is preservation of life which carries substantial weight in the best interests' balance sheet. Could the (prior) values of a patient ever meet the probative standard necessary to offset the weight accorded to preservation of life? Rather than referencing the patient's values to specific circumstances and treatments they could be more effectively considered as part of the patient narrative, how the patient would want her life story to continue/cease. (shrink)

The COVID-19 pandemic is putting the NHS under unprecedented pressure, requiring clinicians to make uncomfortable decisions they would not ordinarily face. These decisions revolve primarily around intensive care and whether a patient should undergo invasive ventilation. Certain vulnerable populations have featured in the media as falling victim to an increasingly utilitarian response to the pandemic—primarily those of advanced years or with serious existing health conditions. Another vulnerable population potentially at risk is those who lack the capacity to make their (...) own care decisions. Owing to the pandemic, there are increased practical and normative challenges to following the requirements of the Mental Capacity Act 2005. Both capacity assessments and best interests decisions may prove more difficult in the current situation. This may create a more paternalistic situation in decisions about the care of the cognitively impaired which is at risk of taking on a utilitarian focus. We look to these issues and consider whether there is a risk of patients who lack capacity to make their own care decisions being short-changed. (shrink)

In an earlier paper I argued that we do not have an objective conception of best interests and that this is a particular problem because the courts describe that they use an ‘…objective approach or test. That test is the best interests of the patient’ when choosing for children. I further argued that there was no obvious way in which we could hope to develop an objective notion of best interests. As well as this, I argued (...) that a best-interest-based approach was a particular problem around the time of death of some children. A response from a legal perspective argued that, while there is not a clear conception of objective best interests, the courts have a well-described approach to finding a child's objective best interests. In this paper, I argue that without clear agreement on an objective conception of best interests, the courts are unable to locate an objective sense of best interests and that the solutions do not solve the problems that were identified in the initial paper ‘Death and best interests’. (shrink)

The case of Twin B involves the decision to send a newborn to a less intensive Level 2 special care nursery (SCN) than to the Level 3 neonatal intensive care unit (NICU) that is considered optimal by the physician. The physician’s acceptance of the transfer is against the child’s best interest and is due to parental convenience. In analyzing the case, we reject the best interest standard. Our rejection is partly supported by the views of Douglas (...) Diekema, John Hardwig, and Lannie Ross. Instead of the best interest standard, we offer and defend an approach we base on a microeconomic analysis of externalities, such as those involved with automobile emissions. This extends our previously presented general microeconomic approach to patient decision-making. It provides a clearer way to evaluate situations, like those of Twin B, in which burdens faced by family members may be used to determine the appropriate level of treatment for a decisionally incapable patient. (shrink)

Background Best interests is a ubiquitous principle in medical policy and practice, informing the treatment of both children and adults. Yet theory underlying the concept of best interests is unclear and rarely articulated. This paper examines bioethical literature for theoretical accounts of best interests to gain a better sense of the meanings and underlying philosophy that structure understandings. Methods A scoping review of was undertaken. Following a literature search, 57 sources were selected and analysed using the thematic (...) method. Results Three themes emerged. The first placed best interests within the structure of wider theory, noting relationships with consequentialism, deontology, prudential value theory, rights and political philosophy. The second mapped a typology of processes of decision-making, among which best interests was ambiguously positioned. It further indicated factors that informed best interests decision-making, primarily preferences, dignity and quality of life. The final theme considered best interests from a relational perspective. Conclusions Characterisation of best interests as strictly paternalist and consequentialist is questionable: while accounts often suggested a consequentialist basis for best interests, arguments appeared philosophically weak. Deontological accounts, found in law and Kantianism, and theories of political liberalism influenced accounts of best interests, with accounts often associating best interests with negative patient preferences (i.e. individual refusals). There was much more emphasis on negative interests than positive interests. Besides preference, factors like dignity and quality of life were held to inform best interests decisions, but generally were weakly defined. To the extent that preferences were unable to inform decision making, decisions were either made by proxy authority or by an intersubjective process of diffuse authority. Differing approaches reflect bifurcations in liberal philosophy between new liberalism and neo-liberalism. Although neither account of authority appears dominant, bias to negative interests suggests that bioethical debate tends to reflect the widespread ascendancy of neo-liberalism. This attitude was underscored by the way relational accounts converged on private familial authority. The visible connections to theory suggest that best interests is underpinned by socio-political trends that may set up frictions with practice. How practice negotiates these frictions remains a key question. (shrink)

Current management of people with prolonged disorders of consciousness is failing patients, families and society. The causes include a general lack of concern, knowledge and expertise; a legal and professional framework which impedes timely and appropriate decision-making and/or enactment of the decision; and the exclusive focus on the patient, with no legitimate means to consider the broader consequences of healthcare decisions. This article argues that a clinical pathway based on the principles of the English Mental Capacity Act 2005 and (...) using time-limited treatment trials could greatly improve patient management and reduce stress on families. There needs to be early and continuing use of formal best interests meetings, starting between 7 and 21 days after onset of unconsciousness. The treatment options need to evolve as the clinical state and prognosis becomes more certain. A formal discussion of treatment withdrawal should occur when the upper bound of predicted recovery falls below a level the patient would have considered acceptable, and it should always be discussed when the condition is considered permanent. Any decision to stop treatment should be contingent on a formal second opinion from an independent expert who should review the clinical situation and expected prognosis, but not the best interests decision. The article also asks how, if at all, the adverse effects on the family and the resource implications of long-term care of people left in a prolonged state of unconsciousness should be incorporated in the process. (shrink)

RésuméEn examinant les politiques et lois provinciales canadiennes relatives à la santé pédiatrique, on constate que le principe du meilleur intérêt (PMI) bénéficie d'un soutien généralisé. Cependant, dans le domaine de la philosophie, le PMI est confronté à une opposition sérieuse. Certes, il reste quelques défenseurs fervents du PMI dans la littérature contemporaine ; cependant, je soutiens que tandis que certains auteurs défendent nominalement le PMI, mon analyse révèle que ce qu'ils défendent réellement est au mieux une version édulcorée de (...) celui-ci. Dans cet article, je soutiens que non seulement le PMI doit être compris de manière restrictive, mais qu'un preneur de décision substitut (PDS) doit satisfaire au PMI — car un PDS est le fiduciaire de son patient. (shrink)

The case of W v M and Others, in which the court rejected an application to withdraw artificial nutrition and hydration from a woman in a minimally conscious state, raises a number of profoundly important medico-legal issues. This article questions whether the requirement to respect the autonomy of incompetent patients, under the Mental Capacity Act 2005, is being unjustifiably disregarded in order to prioritise the sanctity of life. When patients have made informal statements of wishes and views, which clearly—if not (...) precisely—apply to their present situation, judges should not feel free to usurp such expressions of autonomy unless there are compelling reasons for so doing. (shrink)

Simona Giordano (2010) claims that whether or not anorexics should be allowed to die should not primarily depend on their competence, but on the extent of whether the condition can be alleviated. This implies two outcomes. First, that if an anorexic has a reasonable chance of recovery, competent refusal of treatment can be overridden. Second, that if an anorexic has no realistic chance of recovery, patient refusal needs to be upheld—not, exclusively, on the basis of patient’s decision-making competence, (...) but on the basis of their prolonged and unnecessary suffering. Giordano is right, in my view, to suggest that there are good moral grounds to uphold patient wishes to refuse life-saving treatment, when .. (shrink)

According to bioethics orthodoxy, the question, “What would the patient choose?” is a question about the patient's autonomy. is at stake. In fact, what underpins the moral force of that question is a value different from either autonomy or best interests. This is the value of doing things in a way that is authentic to the person.

In this paper, I present an ethical analysis of the case of an elderly woman with dementia, Mrs S. The hospital treating Mrs S sought to cease her dialysis treatment despite Mrs S’s family’s protestations that continuing the treatment was in her best interests. Assuming Brock’s framework as a theoretical background, I consider the case in terms of three questions. Firstly, was ‘best interests ’ the appropriate basis for deciding on a course of action in this situation? Secondly, (...) assuming the appropriateness of a best interests principle, was it in Mrs S’s best interests for the dialysis treatment to be withdrawn as the hospital suggested? And thirdly, if it was in Mrs S’s best interests for dialysis to be withdrawn, was the hospital right to pursue this course of action in light of the family’s disagreement? Based on the changes to the patient’s ‘self ’ associated with dementia, I argue that a best interests principle was appropriate, that continuing dialysis was not in Mrs S’s best interests, and that the hospital should have pursued cessation of treatment even in light of the family’s contrary wishes. (shrink)

Opt-out systems of postmortem organ procurement are often supposed to be justifiable by presumed consent, but this justification turns out to depend on a mistaken mental state conception of consent. A promising alternative justification appeals to the analogical situation that occurs when an emergency decision has to be made about medical treatment for a patient who is unable to give or withhold his consent. In such cases, the decision should be made in the best interests of the (...) class='Hi'>patient. The analogous suggestion to be considered, then, is, if the potential donor has not registered either his willingness or his refusal to donate, the probabilities that he would or would not have preferred the removal of his organs need to be weighed. And in some actual cases the probability of the first alternative may be greater. This article considers whether the analogy to which this argument appeals is cogent, and concludes that there are important differences between the emergency and the organ removal cases, both as regards the nature of the interests involved and the nature of the right not to be treated without one’s consent. Rather, if opt-out systems are to be justified, the needs of patients with organ failure and/or the possibility of tacit consent should be considered. (shrink)

Wayne Martin and colleagues argue that decisions about patients’ best interests must sometimes take into account the interests of others Doctors often find themselves in circumstances where they must make decisions on behalf of an incapacitated patient. As a matter of both ethics and law, such decisions must be taken in the best interests of the patient, but uncertainty remains about what is meant by best interests, especially in relation to the interests of others. Should (...) the interests of others enter into a determination of the patient’s best interests? We believe that they should and argue against a recent trend to focus solely on the patient. It only takes a moment’s reflection to appreciate that the interests of one person are often wrapped up with the interests of others. A patient has an interest in recovering from her illness, but so do her family, employer, care providers, etc. Sometimes these various interests can be independently specified, but in other cases they are inextricably intertwined. Suppose that I am a single parent whose overriding interest is to ensure the wellbeing of my children. In that case the proper specification of my best interest is a function of theirs; I simply cannot determine the one without considering the other. This can create an ethical problem in medical decision making. In circumstances where medical staff must make a decision in the best interests of an incapacitated patient, to what extent can or should they take account of the interests of other people whose lives are affected by the outcome? These ethical issues have taken on a concrete legal shape in the UK with the implementation of the Mental Capacity Act 2005, which specifies that, “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity …. (shrink)