BEST INTERESTS, PATIENT PARTICIPATION AND THE MENTAL CAPACITY ACT 2005

For many hundreds of years, the law has been concerned with the task of making decisions for adults lacking legal capacity.1 For much of this time, these decisions have been made on the basis that they were in the best interests of the person in question.2 With the advent of the declaratory jurisdiction in 1990,3 the best interests standard came to be widely used in the healthcare context. However, the application of the standard received relatively little detailed analysis and the conceptual basis for the standard has remained, for the most part, unexplored. Since the enactment of the Mental Capacity Act 2005 (MCA), the best interests standard now operates within a detailed legislative framework.4 Of particular interest are the participative elements in the MCA's approach to best interests, represented by the Act's requirement that the person lacking capacity should participate in the process of determining her5 best interests6 and the recognition which the Act affords to the present and past wishes and feelings of the person lacking capacity and to the beliefs and values that would have been likely to influence her decision if she had had capacity.7