Best interest and family compromise

It is not unusual to hear medical professionals complain that the 2005 Mental Capacity Act (MCA) 1 precludes a certain kind of humane family compromiseespecially medical professionals with experience of working in the previous legislative framework.It is not hard to see why.The MCA requires that decisions be based on the best interest of patients.The process of determining the best interest of the patient may seem to preclude a certain kind of openended discussion between the relevant medical professionals and family members.This may reflect a broader misunderstanding of 'best interest'.The outcome in the best interest of a patient is often identified with the outcome which is medically best.However, the best interest of patients without capacity is, according to the legislation and to the accompanying Code of Practice, 2 to be determined in relation to the patient's preferences and values, at least when these can be ascertained.That is, it is sensitive to the patient's subjective view of their best interest, not only to objective concerns, let alone only to medical concerns.This misunderstanding is by no means limited to medical practitioners, nor is it universal among them.For example, Coggon 3 criticises Baker J's judgment and reasoning in Re M. 4 According to Coggon, Baker J misunderstands the Code of Practice and the MCA.Baker J views these as claiming that although those assessing capacity should be concerned with the values and preferences of the patient, the decision that they make for the patient should ultimately be governed by the patient's best interest alone, which Baker J sees as a separate issue from the patient's values and preferences.Coggon argues, conversely, that according to the Code of Practice and the legislation, a patient's values and preferences are part of determining their best interest, but they are not the sole determinant of medical decision-making any more than they are in the case of a capacitous patient.Even capacitous patients cannot, for example, demand treatment that they do not need and that would not be medically justified.How does a broader understanding of best interest affect the possibility of family compromise?When it is possible to ascertain an incapacitous patient's reflective preferences and values (normally from the time that they were capacitous), these should be treated as partly determinative of best interest.Many people have other-regarding preferences and values.Many of us would prefer that our loved ones be happy than unhappy, and many of us would prioritise this preference over preferences regarding the minutiae of medical treatment.When it is possible to ascertain such preferences, they should be factored into determining the best interest of the patient.