Best Interests and Healthcare Law
This strand of the project examines the origins, interpretations and functions of the concept of ‘best interests’ within healthcare law.
This workstream analyses how the concept has developed within the law over time in the context of both children and adults deemed to lack decision-making capacity. It also interrogates how relevant stakeholders currently understand and apply the 'best interests’ standard in practice.
In the final stage of the project, conclusions on the current conceptualisation and application of the best interests standard will be made, as will recommendations for law reform, where appropriate.
The interview stage of WS2's research is now complete, and the team are very grateful to all who participated.
Aims and Objectives
BABEL has three phases: mapping, framing and shaping.
This exciting inter-disciplinary project combines our health law expertise at the Centre for Heath, Law & Society (CHLS), with CEM's expertise in healthcare ethics. The research is hugely important, as it has the potential to impact on the legal and ethical frameworks which regulate the lives of many patients, both young and old, who are deemed to lack capacity to make decisions about their medical treatment
Mapping
The first phase involves an examination of the legislation, cases and academic commentary on the concept of best interests in medico-legal decision-making in England and Wales. This will be carried out in order to provide a complete account of the various ways in which ‘best interests’ has been interpreted and applied by both the legislature and the courts, over time and in different situational contexts. It will also allow for an examination of contemporary proposals for alternative legal standards to be applied in cases where a person is considered to lack decision-making capacity. We call this phase 'mapping'.
Framing
The second phase will seek to explore the experience of relevant stakeholders in understanding, interpreting and applying the best interests standard. This will be done by way of interviews and focus groups. This empirical element of the research will illustrate the realities of best interests decision-making and will illustrate the different perspectives and viewpoints which shape the interpretation of the law in this area. Based on the data collected in this phase of the project, it will be possible to arrive at a more complete account of how the best interests standard operates in practice. Towards the end of this phase, it will be possible to compare and contrast the results of this phase with the information gathered during the mapping phase. We call this phase 'framing'.
Shaping
The final phase, based on the mapping and framing which has been undertaken, will provide an account of the best interest standard in medico-legal decision-making – how it is conceptualised and applied. We will then make conclusions and recommendations for the future of the law in this area. We call this phase 'shaping'.
We are working closely with Workstream 1 (Best Interests and Healthcare Ethics) during each of these phases in order to ensure that a complete legal and ethical account of the best interests standard is achieved.
Methods
We are using different methods in each of the three phases (‘mapping’, ‘framing’ and ‘shaping’). Each of these phases is informed and shaped by the methodologies developed by Workstream 3 which take an empirical bioethics approach.
1. Mapping
In this phase, we will be conducting a literature review of the relevant legislation, case law and academic commentary on best interests.
2. Framing
In this phase, we will undertake qualitative research, which will seek to understand legal and other relevant professionals/practitioners' experiences of, and attitudes to, ‘best interests’ in healthcare law. We intend to conduct interviews and run focus groups which will bring these individuals together to share their views.
3. Shaping
In this phase, we will compile what we have found from the literature review and our empirical research. We will draw conclusions on the nature and interpretation of the best interests standard and make recommendations for reform of the law where this is justified by our findings.