View/Open - Scholarly Commons Home

• Detention of an adult with autism for treatment: R v Bournewood Community and
Mental Health NHS Trust, Ex parte L [1998].
• Use of experimental drugs to treat Variant Creutzfeldt Jakob Disease: Simms v
Simms and another; A v A and another [2003] (UK).
• Enforced caesarean section against a pregnant woman’s wishes: Re MB [1997]
(UK).
The best interests test has been applied together with the ‘Bolam test’. In Bolam v
Friern Hospital Management Committee [1957] (England), it was established that a
doctor, or other health professional, is not liable in negligence if she has acted
according to a responsible body of medical opinion.
The combination of Bolam and the best interest test perpetuates the notion that the best
interests of incapacitated adults are limited only to medical interests. For example, in
the New Zealand case of Shortland v Northland Health Ltd [1997], a patient who
lacked capacity to consent or refuse treatment was denied renal replacement therapy. It
was held that the doctors making the decision to discontinue his treatment acted in good
faith and in their patient’s best interests. Furthermore, the doctors’ decision conformed
with “prevailing medical standards and with practices, procedures, and traditions
commanding general approval within the medical profession” (Salmon J, p. 131). The
judgement was not influenced by other considerations, for example, that the patient
himself had expressed a wish to continue treatment and his family strongly supported
the continuation of treatment. Neither cultural, familial or other factors impacted on the
decision and the suggestion that Mr Williams’ situation be assessed by an ethical
review board were rejected. This judgement reflects a body of international case law
which supports the view that an incapacitated person’s best interests may be decided
exclusively by health professionals caring for the patient, as long as they are acting in
good faith, and in accordance with a responsible body of medical opinion.
3