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Best Interests – Guidance from the Supreme Court

The Supreme Court has recently had to comment on the best interests requirements of the Mental Capacity Act 2005 (“MCA”) for the first time[1].


The patient was a 68 year old man who had been in intensive care for many months. His doctors applied to the Court of Protection seeking declarations as to the lawfulness of withholding treatment. The Court of Appeal had made declarations about his best interests, but although the patient had died by then, the matter was referred to the Supreme Court who provided useful guidance on the application of the Mental Capacity Act.

The most important guidance from the Supreme Court was that the Court has confirmed that the question of what amounts to a patient’s best interests is not an objective test of what the “reasonable patient” would think. The best interests test requires the issue to be considered from the point of view of the patient. His views may not prevail, but those are key factors so that decisions regarding the best interests of a particular individual are viewed through the prism of his views.

That said, the Act will only enable best interest decisions to be taken to allow action that the patient could himself authorise if he had capacity. This means that in the same way that a patient cannot demand inappropriate treatment, the MCA cannot be used to authorise that. Nor can treatment that is unlawful be authorised under the MCA.

The Court also considered what would amount to futile treatment. Futility was not to be judged by considering whether treatment would cure or at least palliate a life threatening illness. Futility was to be looked at on the basis that treatment was futile if it was ineffective or of no benefit to the patient. If on the other hand the treatment would bring some benefit, even if it may have no effect on his underlying illness, then it was not futile.


Guidance from the Supreme Court is always welcome. This has confirmed much of the approach previously adopted but is particularly helpful in clarifying that best interests issues are to be judged from the viewpoint of the individual patient.

Andrew Parsons
t: 020 7227 7282
February 2014
© RadcliffesLeBrasseur


[1] Aintree University Hospital’s NHS Foundation Trust v James [2013] UKSC 67


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.