Best interests, patient participation and the mental capacity act 2005

Medical Law Review

Volumn 17, Issue 1, 2009, Pages 1-29

  Donnelly, Mary ^a  

^a UNIVERSITY COLLEGE CORK   (Ireland)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; DECISION MAKING; HEALTH CARE DELIVERY; HUMAN; LEGAL ASPECT; MENTAL CAPACITY; PATIENT PARTICIPATION; UNITED STATES;

DECISION MAKING; DELIVERY OF HEALTH CARE; HUMANS; MENTAL COMPETENCY; PATIENT PARTICIPATION; UNITED STATES;

EID: 63349089120     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwn021     Document Type: Article

References (200)

1. The first formal statement of the parens patriae jurisdiction may be found in the thirteenth century 'statute' de Prœrogativa Regis 17 Edward II, c.9 and c.10. See further J. Seymour, 'Parens Patriae and Wardship Powers: Their Nature and Origins' (1994) 14 O.J.L.S. 159.
2. The term 'best interests', now associated with decision-making for people lacking capacity, was not used in the very early cases. Instead, the focus was on the 'benefit' to the person. L. Shelford, Practical Treatise on the Law Concerning Lunatics, Idiots, and Persons of Unsound Mind (JS Littell, 1833), at 129-130 cites a number of such cases: See in Re Bird, 9 March 1827
3. in Re Baker, 20 June 1827
4. and in Re Harris, 9 August 1827.
5. The declaratory jurisdiction was established in Re F: (An Adult: Sterilisation) [1990] 2 A.C. 1 as a replacement for the parens patriae jurisdiction which had been abolished in 1959 by a combination of the Revocation of the Royal Warrant under the Sign Manual and section 1 of the Mental Health Act 1959. The House of Lords held that the common law doctrine of necessity allowed the medical treatment of adults who were unable to give personal consent. For the doctrine to apply, the medical intervention had to be in the best interests of the adult lacking capacity and a formal application could be made to the Family Division of the High Court for a declaration to this effect.
6. The MCA commenced gradually over the course of 2007 with the main body of the Act coming fully into force on 1 October 2007 (see the Mental Capacity Act 2005 (Commencement No. 2) Order 2007 (S.I. 1897/2007)).
7. For convenience, I have adopted the female pronoun throughout this article.
8. Section 4(4) of the MCA.
9. Section 4(6) of the MCA.
10. A. Buchanan and D. Brock, Deciding for Others: The Ethics of Surrogate Decision Making (Cambridge University Press 1989) at 3.
11. [1990] 2 AC 1. See generally M. Donnelly, 'Decision Making for Mentally Incompetent People: The Empty Formula of Best Interests' (2001) 20 Medicine and Law 405.
12. Ibid., 55 per Lord Brandon.
13. In Airedale NHS Trust v. Bland [1993] A.C. 789, the House of Lords held that the best interests standard adopted in Re F was also applicable to treatment withdrawal. In relation to a patient in a persistent vegetative state, the appropriate question was (ibid., 808 per Lord Goff) whether it was in the patient's best interests to continue to receive life-sustaining treatment.
14. This accords with the approach taken by the House of Lords in the earlier case of Re B (A Minor) (Wardship: Sterilisation) [1988] 1 A.C. 199.
15. See Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582.
16. Since Bolitho v. Hackney Health Authority [1998] A.C. 232, the Bolam test incorporates a degree of judicial scrutiny of the conduct of medical professionals.
17. Re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1, 52 per Lord Bridge
18. ibid., 68 per Lord Brandon
19. ibid., 69 per Lord Griffiths
20. ibid., 78 per Lord Goff.
21. See I. Kennedy, 'Patients, Doctors and Human Rights' in R. Blackburn and J. Taylor (eds), Human Rights for the 1990s (Mansell 1991) at 89-90.
22. [1997] 2 F.C.R. 541.
23. Ibid., 556 per Dame Elizabeth Butler Sloss L.J. The Court did note that the question of force might have to be considered in depth on another occasion.
24. In addition to the body of healthcare cases, the declaratory jurisdiction was held to cover a range of personal decisions outside the healthcare context in which it originated: See Re S (Hospital Patient: Court's Jurisdiction) [1996] Fam. 1
25. and Re F (Adult: Court's Jurisdiction) [2001] 3 Fam. 38.
26. [2000] 1 F.C.R. 193.
27. Ibid., 200. This view had already been established in Re Y (Mental Patient: Bone Marrow Donation) [1997] Fam. 110.
28. See also in Re S (Adult Patient: Sterilisation) [2001] 2 Fam. 15, 30
29. Simms v. Simms and Anor; A v. A and Anor [2002] E.W.H.C. 2734 (Fam), [60]
30. R (Burke) v. The General Medical Council and Others [2005] Q.B. 424, 455-456.
31. See generally P. Lewis, 'Procedures That Are Against the Medical Interests of Incompetent Adults' (2002) 22 O.J.L.S. 575.
32. [2000] 1 F.C.R. 193, 200-201. Dame Elizabeth Butler-Sloss P. reiterated her position in Re SL (Adult Patient: Medical Treatment) [2000] 2 F.C.R. 452,
33. where her argument found the support of Thorpe L.J. This position was confirmed by Court of Appeal in NHS Trust v. A and Anor [2005] E.W.C.A. Civ. 1145.
34. Ibid., 201.
35. The linkage between rights arising under the ECHR and the requirement for patient participation is discussed further in the text to n. 81 infra.
36. Law Com. No. 231 (HMSO 1995), para. 3.28.
37. Supra n. 19, 206.
38. Ibid.
39. For examples of the balance sheet approach in operation, see A National Health Trust v. C unreported, High Court (Family Division), 8 February 2000 (in the context of non-consensual sterilisation)
40. A Hospital NHS Trust v. S [2003] E.W.H.C. 365 (Fam.), [47] (in the context of receipt of a kidney transplant).
41. Practice Direction (Declaratory Proceedings: Incapacitated Adults) [2002] 1 W.L.R. 325, para 7.
42. Although note the more inclusive approach in a non-healthcare context in Bailey v. Warren [2006] E.W.C.A Civ. 51, [105] per Arden L.J.
43. and Re MM (an adult) [2007] E.W.H.C. 2003 (Fam).
44. This fact was mentioned by Dame Elizabeth Butler-Sloss P. supra n. 19, 196, although the President continued by noting the consultant psychiatrist's view that this was 'not an informed one since [the patient] could not understand the reason for the operation'.
45. Supra n. 27.
46. [1998] 2 F.L.R. 1124.
47. Ibid., 1128.
48. [2004] E.W.H.C. 1279 (Fam.).
49. Ibid., [66]. The patient's reasons were contained in an advance directive under the heading 'reasons for my decision' (which was held to have been made while the patient lacked capacity).
50. [2002] 1 F.L.R. 445.
51. Ibid., 452.
52. Ibid., 451-452. Other arguments in favour of the termination included the fact that the baby would almost definitely be taken away from the woman after birth; the difficulties in ensuring the health and safety of the woman and the foetus throughout the pregnancy; and the difficulties with arranging future care for the baby (given that both the baby's parents suffered from serious mental illnesses, it would be difficult to arrange an adoption). Arguments against the termination were that, at this stage in a pregnancy (close to the statutory limit for termination), the termination process would be 'a drawn out, painful and traumatic procedure'; the possibility that the woman would, when her illness became less florid, feel a heavy burden of loss and grief; and the fact that the woman, who was acutely psychotic, would create a very difficult situation for staff and that she would be unable to engage in counselling after the termination.
53. See Re T (adult: Refusal of medical treatment) [1992] 3 W.L.R. 782, 787
54. Re C (adult: Refusal of medical treatment) [1994] 1 W.L.R. 290
55. Airedale NHS v. Bland [1993] A.C. 789, 864
56. St George's Healthcare NHS Trust v. S [1998] 3 W.L.R. 936, 969
57. Re AK (Medical Treatment: Consent) [2001] 1 F.L.R. 129, 134
58. HE v. A Hospital NHS Trust [2003] 2 F.L.R. 408.
59. S. Michalowski, 'Advance Refusals of Life-Sustaining Medical Treatment: The Relativity of the Absolute Right' (2005) 68 M.L.R. 958, 981.
60. [2003] 2 F.L.R. 408.
61. Ibid., 415.
62. Ibid.
63. Ibid., 416.
64. Support for Munby J.'s approach may be derived from Lord Goff's statement in Bland v. Airedale NHS Trust [1993] A.C. 789, 864 that 'especial care' may be necessary to ensure that a prior refusal still applies in the circumstances that have subsequently arisen.
65. See also the list of issues to be addressed in determining the applicability of an advance refusal identified by Hughes J. in Re AK (Medical Treatment: Consent) [2001] 1 F.L.R. 129, 134.
66. Munby J. also held (ibid., 419) that any statement in an advance refusal which purported to make the decision irrevocable or which required revocation to be in writing was contrary to public policy and would not be upheld.
67. Ibid.
68. Ibid.
69. Mentally Incapacitated Adults and Decision-Making: An Overview, Consultation Paper No. 119 (H.M.S.O. 1991).
70. See also Mentally Incapacitated Adults and Decision-Making: A New Jurisdiction, Consultation Paper No. 128 (H.M.S.O. 1993)
71. Mentally Incapacitated Adults and Decision-Making: Medical Treatment and Research, Consultation Paper No. 129 (H.M.S.O. 1993)
72. Mentally Incapacitated and Other Vulnerable Adults: Public Law Protection, Consultation Paper No. 130 (H.M.S.O. 1993).
73. Law Com. No. 231 (H.M.S.O. 1995).
74. The remaining principles in section 1 are relevant to the determination of capacity.
75. Section 1(5).
76. Section 1(6).
77. Depending on the circumstances, best interests may be determined by one of a number of persons/bodies, including the court, a medical professional, a donee of a lasting power of attorney or a court-appointed deputy.
78. Section 4(1).
79. Section 4(3).
80. Section 4(4).
81. Section 4(5).
82. Section 4(6).
83. The MCA does not specify whether a patient must have capacity in order to name a person in this regard. However, it is in line with the approach of the MCA that a person lacking capacity should be able make such a nomination notwithstanding her incapacity.
84. Section 4(7).
85. Section 36.
86. Section 37. 'Serious' medical treatment is defined in section 37(6) as 'treatment which involves providing, withholding or withdrawing treatment of a kind prescribed by regulations made by the appropriate authority'. The advocacy service is also activated by the provision of, or a change in, accommodation in a hospital or care home by an NHS body and the provision of, or a change in, residential accommodation by a local authority.
87. Section 37(1)(b).
88. Department of Constitutional Affairs, 2007.
89. Makaton is a communication system based on visual representation through gestures and signs.
90. Much of this work has been in the context of people with learning disabilities: See C. Kearney and T. McKnight, 'Preference, Choice, and Persons with Disabilities: A Synopsis of Assessments, Interventions, and Future Directions' (1997) 17 Clinical Psychology Review 217
91. L. Cameron and J. Murphy, 'Enabling Young People with a Learning Disability to Make Choices at a Time of Transition' (2002) 30 British Journal of Learning Disabilities 105
92. C. Regnard et al., 'Understanding Distress in People with Severe Communication Difficulties: Developing and Assessing the Disability Distress Assessment Tool (DisDAT)' (2006) 51 Journal of Intellectual Disability Research 277
93. A. Young and R. Chesson, 'Obtaining Views on Health Care from People with Learning Disabilities and Severe Mental Health Problems' (2006) 34 British Journal of Learning Disabilities 11.
94. Supra n. 8 at 27.
95. Report on Incapacity supra n. 48 at 46.
96. [2002] 1 W.L.R. 419.
97. Ibid., 446.
98. See Re MB (An Adult: Medical Treatment) [1997] 2 F.C.R. 541 discussed in the text to n. 17 supra.
99. Section 6 provides that the protection from liability set out in section 5 does not apply to 'an act intended to restrain' the patient unless the person performing the act reasonably believes that it is necessary to do the act in order to prevent harm to the person lacking capacity and the act is a proportionate response to the likelihood of harm occurring and to the seriousness of the harm.
100. See, in the specific context of learning disabilities, K. Keywood et al., Best Practice?: Healthcare Decision-making By,With and For Adults with Learning Disabilities (National Development Team 1999).
101. Due Process and Fair Procedures: A Study of Administrative Procedures (Clarendon 1996) at 131-132.
102. See the MacArthur Coercion Study (D. Dennis and J. Monahan (eds), Coercion and Aggressive Community Treatment: A New Frontier in Mental Health Law (Plenum Press 1996)
103. T. Carney and D. Tait The Adult Guardianship Experiment (Federation Press 1997).
104. See B.Winick, 'The Right to Refuse Mental Health Treatment: A Therapeutic Jurisprudence Analysis' (1994) 17 International Journal of Law and Psychiatry 99, 100.
105. See, for example, B. Schulman, 'Active Patient Orientation and Outcomes in Hypertensive Treatment' (1979) 17 Medical Care 267
106. L. Fallowfield et al., 'Psychological Outcomes of Different Treatment Policies in Women with Early Breast Cancer Outside a Clinical Trial' (1990) 301 British Medical Journal 575. Although this research relates to legally capable adults, there is no reason why the therapeutic benefit of participation, including a feeling of ownership of the treatment process, would not apply in relation to at least some adults without legal capacity.
107. 'The Right to Refuse Mental Health Treatment' supra n. 75, 100.
108. For further discussion of this approach to law, see D. Wexler and B. Winick, Essays in Therapeutic Jurisprudence (Carolina Academic Press 1991)
109. D. Wexler and B.Winick (eds) Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Carolina Academic Press 1996).
110. See the questions raised by C. Slogobin, 'Therapeutic Jurisprudence: Five Dilemmas to Ponder' (1995) 1 Psychology, Public Policy and Law 1933
111. S. Behnke and E. Saks, 'Therapeutic Jurisprudence: Informed Consent as a Clinical Indication for the Chronically Suicidal Patient with Borderline Personality Disorder' (1998) 31 Loyola of Los Angeles Law Review 945, 978-981.
112. See Herczegfalvy v. Austria (1992) 15 E.H.R.R. 437
113. Glass v. UK [2004] E.C.H.R. 102 Application No. 61827/00.
114. X and Y v. Netherlands (1986) 8 E.H.R.R. 235, para. 22.
115. [2005] E.C.H.R. 406.
116. Ibid., para. 143.
117. Recommendation No R (99) 4 of the Committee of Members to Member States on Principles Concerning the Legal Protection of Incapable Adults (adopted 23 February 1999).
118. (2006) General Assembly Resolution 61/106.
119. Article 3(c).
120. Principle 9(1).
121. Principle 9(2).
122. Principle 9(3).
123. See C. Schneider, The Practice of Autonomy (Oxford University Press 1998)
124. O. O'Neill, Autonomy and Trust in Bioethics (Cambridge University Press 2002).
125. Re T (Adult: Refusal of Medical Treatment) [1992] 3 W.L.R. 782, 786 per Lord Donaldson M.R.
126. Although associated with US law, the substituted judgment standard in fact originates from English decisions relating to the use of funds in the estates of previously capable individuals (see Ex Parte Whitbread (1816) 35 Eng. Rep. 878, 879) and was transplanted into US healthcare law, beginning with the decision in Strunk v. Strunk (1969) 445 S.W. 2d. 145.
127. The standard was widely adopted across the United States following the decision in Re Quinlan (1976) 70 N.J. 10.
128. L. Harmon 'Falling off the Vine: Legal Fictions and the Doctrine of Substituted Judgment' (1990) 100 Yale Law Journal 1.
129. This followed the widespread adoption at state level of the Uniform Health-Care Decisions Act 1994, which shifted the decision-making function away from the courts and instead placed it with designated surrogates, usually family members of the person lacking capacity. The Uniform Health-Care Decisions Act 1994 provides for advance directives, enduring powers of attorney and, as a final resort, surrogate decision-making. However, as L. Francis, 'Decision Making at the End of Life: Patients with Alzheimer's or Other Dementias' (2001) Georgia Law Review 539, 561 notes, the majority of people do not avail themselves of the first two options and, accordingly, the surrogate facility is most frequently relied upon.
130. One such exceptional circumstance arose in Schindler v. Schiavo (2003) 851 So. 2d. 182 (Fla. Dist. Ct. App.), which made its way to the United States Supreme Court following the introduction of emergency legislation in the State of Florida (H.B. 35E. Authority for the Governor to Issue a One-Day Stay to Prevent the Withholding of Hydration and Nutrition from a Patient).
131. See further R. Dresser, 'Schiavo: A Hard Case Makes Questionable Law' (2004) 34 Hastings Center Report 8.
132. Section 5(f) of the Uniform Health-Care Decisions Act 1994 states that a surrogate 'shall make a health-care decision in accordance with the patient's individual instructions, to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate's determination of the patient's best interest and in good faith'.
133. Report on Incapacity supra n. 24, para. 3.25.
134. Although the substituted judgment standard was rejected by the House of Lords in Airedale NHS Trust v. Bland [1993] A.C. 789, 872 per Lord Goff
135. 895 per Lord Mustill, some English courts have incorporated aspects of the standard by asking what the patient would have wanted as part of their assessment of best interests (see the approach of the Court of Appeal in Bland ibid.; Re J (a Minor) (Wardship: Medical Treatment) [1991] Fam. 33, 55
136. Portsmouth NHS Trust v. Wyatt and Anor [2004] E.W.H.C. 2247 (Fam.), [30]).
137. R. Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (Alfred A. Knopf 1993) at 224.
138. R. Dresser, 'Missing Persons: Legal Perceptions of Incompetent Patients' (1994) 46 Rutgers Law Review 609, 666-667.
139. See the work of Regnard et al. supra n. 65 in developing ways to understand distress signals in people with severe communication difficulties.
140. See J. Porter et al., 'Interpreting the Communication of People with Profound and Multiple Learning Difficulties' (2001) 29 British Journal of Learning Disabilities 12
141. J. Ware, 'Ascertaining the Views of People with Profound and Multiple Learning Disabilities' (2004) 32 British Journal of Learning Disabilities 175.
142. Some commentators have argued that the risk of acquiescence is heightened in the context of people with learning disabilities: See C. Sigelman et al., 'When in Doubt, Say Yes: Acquiescence in Interviews with Mentally Retarded Persons' (1981) 19 Mental Retardation 53
143. L. Heal and C. Sigelman, 'Response Biases in Interviews of Individuals with Limited Mental Ability' (1995) 39 Journal of Intellectual Disability Research 331.
144. See the text to n. 59 supra.
145. See the text to n. 62 supra.
146. Supra n. 63, para. 5.24.
147. This is usefully exhibited in a case study described by Porter et al. supra n. 101, 16. Peter, a young man with profound learning disabilities, tapped at a helium balloon when it came near him. The staff at his school believed him to be playing with the balloon, his family believed that he was trying to push the balloon away and the researchers for the case study noted that Peter had difficulty controlling his arm movements.
148. Supra n. 63, para. 5.12.
149. See the text following n. 31 supra.
150. Supra n. 99, 612.
151. (1984) 464 N.E. 2d. 959.
152. G. Annas, 'The Case of Mary Hier: When Substituted Judgment Becomes Sleight of Hand' (1984) Hastings Center Report 23.
153. See similar arguments also made by Annas in the context of the earlier decision In Re Spring (1979) 399 N.E. 2d. 493 in 'Quality of Life in the Courts: Earle Spring in Fantasyland' (1980) Hastings Center Report 9.
154. Supra n. 110, 965.
155. Supra n. 111, 25.
156. Ibid.
157. See the text following n. 97 supra.
158. See, for example, the comments of Lord Donaldson M.R. noted in Re T (Adult: Refusal of Medical Treatment) [1992] 3 W.L.R. 782, 786.
159. [2002] 1 F.L.R. 445. See the text to n. 35 supra.
160. Cases with this degree of uncertainty are likely to be relatively rare. The applicant's responsible medical officer in Re SS noted ( ibid., 452) the unusual nature of this case, because the evidence 'usually points clearly one way or the other and the correct course is taken'.
161. See the approach advocated by Sir Mark Potter P. in Trust A and Trust B v. H (An Adult Patient) [2006] E.W.H.C. 1230 (Fam.). While accepting that restraint was lawful, the President noted [27] that the extent to which restraint may be needed 'has to be carefully considered when assessing the balance of benefit and disadvantage in the giving of the proposed medical treatment and where the best interests of the patient truly lies'.
162. See the list set out in the text to n. 59 supra.
163. An advance refusal does not apply to 'life-sustaining treatment' unless verified by a written statement to the effect that it is to apply even if life is at risk (section 25(5)).
164. See the approach taken by Munby J. in HE v. A Hospital NHS Trust [2003] 2 F.L.R. 408, 417. Although Munby J.'s comments precede the MCA, there is nothing in the MCA to require a departure from this approach.
165. Section 25(1).
166. Section 25(2)(c). The other circumstances in which a decision is not valid are if the person has withdrawn it when she had capacity to do so or if a later lasting power of attorney conferred authority on a donee to consent to or refuse the designated treatment.
167. [2003] 2 F.L.R. 408.
168. Section 25(4)(c). The other circumstances in which a decision is not applicable are if the person has capacity at the time the question of treatment refusal arises, if the treatment in question is not specified in the advance decision, or if any circumstances specified in the advance decision are absent.
169. See Dresser, 'Missing Persons' supra n. 99, 624-630
170. Buchanan and Brock supra n. 8 at 101-108.
171. The normative context for these aspects of section 25 is discussed further in the text following n. 130 infra.
172. J. Coggon, 'Ignoring the Moral and Intellectual Shape of the Law After Bland: The Unintended Side-effect of a Sorry Compromise' (2007) 27 Legal Studies 110, 125 describes the section as a 'sorry compromise' with sanctity of life doctrine.
173. See in particular R. Dresser, 'Life, Death, and Incompetent Patients: Conceptual Infirmities and Hidden Values in the Law' (1986) 28 Arizona Law Review 373; 'Missing Persons' supra n. 99
174. 'Dworkin on Dementia: Elegant Theory, Questionable Policy' [1995] Hastings Center Report 32.
175. See the facts of in Re Martin (1995) 538 N.W. 2d. 399. The patient was legally incapable and significantly disabled following a car accident. He was fed by a feeding tube but otherwise did not require medical treatment. His wife brought a petition to have feeding stopped on the basis that, while capable, the patient had expressed a desire not to have his life sustained in these circumstances. Other members of the patient's family contended that, even if he had had these views prior to his accident, he had now changed his attitude and was contented and co-operative with his carers.
176. See further T. Marzen and D. Avila, 'Will the Real Michael Martin Please Speak Up! Medical Decisionmaking for Questionably Competent People' (1995) 72 University of Detroit Mercy Law Review 833.
177. The issues are evoked in Alice Munro's short story 'The Bear Came over the Mountain' in Hateship, Friendship, Courtship, Loveship, Marriage (Vintage2001) (filmed as Away From Her, dir. Sarah Polley, 2006).
178. Life's Dominion supra note 98.
179. See also N. Rhoden, 'Litigating Life and Death' (1988) 102 Harvard Law Review 375; N. Cantor, 'Prospective Autonomy: On the Limits of Shaping One's Postcompetence Medical Fate' (1992) 13 Journal of Contemporary Health Law and Policy 13.
180. Ibid. at 230.
181. Ibid. at 201-202.
182. See the text to n. 127 supra.
183. See work cited in n. 130 supra, and in particular, 'Life, Death and Incompetent Patients'.
184. 'Life, Death and Incompetent Patients' supra n. 130, 379.
185. See Reasons and Persons (Clarendon, 1984) at 216 et seq.
186. Supra n. 8, at 152-189.
187. See also Rhoden supra n. 133.
188. Ibid. at 182-183.
189. Supra n. 98, at 226.
190. See ibid. at 232-233 for Dworkin's inconclusive description of a situation involving an individual without a clear advance directive.
191. Harmon supra n. 92, 71.
192. For a full list, see the text to n. 59 supra.
193. See the study reported by D. Sulmasy et al., 'The Accuracy of Substituted Judgments in Patients with Terminal Diagnosis' (1998) 128 Annals of Internal Medicine 621, which matched the actual treatment preferences of (capable) patients who had a predicted two-year survival rate of less than 50% with their family members' views of their likely preferences. Approximately one-third of family members made inaccurate predictions regarding preferences.
194. See also studies cited in D. Wicclair, Ethics and the Elderly (Oxford University Press 1993) at 56
195. Francis supra n. 93, 569-570.
196. Ethics and the Elderly, ibid. at 55-56.
197. Ibid. at 56.
198. As noted in the text to n. 95 supra, the substituted judgment standard as operated in the United States clearly accords theoretical precedence to past preferences over current interests.
199. See the text following n. 124 supra.
200. K. Atkins, 'Autonomy and the Subjective Character of Experience' (2000) 17 Journal of Applied Philosophy 71, 75.