Determining best interests

A group of us (within ISCRI at Uclan) are putting together an interdisciplinary bid on the determination of best interests for people who are deemed to lack the capacity to make a relevant decision under the mental capacity act. The act itself is accompanied by a code of practice which gives advice on the factors that should be taken into account (by clinicians, eg.) to work out what is in someone’s best interests and also what is ruled out. But, perhaps obviously, such judgements can only be codified to a certain extent.

Whilst the main thrust of the research proposal is empirical, the very idea of the ‘determination of best interests’ is laced with philosophical issues. Just what is meant by best interests? What constraints (a priori vs. a posteriori; individual versus universal; subjective versus objective; normally governed by first person privilege or not; constituted by or reflected in judgements) govern it and how do these affect judgements or determinations of it?

The main thrust of the proposed study is empirical, however, because there is an important practical question of how such judgements are actually being made, whether in accord or not with the code of practice, and using what kind of interpretation of the guideline factors in actual contexts. But this is one of those areas where some a priori idea of the range of possible ideas and values in play looks important to shape, and then later be shaped by, the empirical inquiry. The philosophical inquiry also looks to offer some sort of normative judgement not just of how such determinations are being made but whether those could be effective ways of tracking a person’s best interests.

Anyway, my being a philosopher was my justification for contributing to the philosophical thread running through the bid. But I was also impressed by the way ideas for methods of conducting the more empirical aspects were considered. Should we follow clinicians and other professionals or patents and clients? And given that, how many cases would be needed to have good data? Such questions have ideological aspects. For patient centred care we should naturally favour following patients.

But such ideological aspects might easily be trumped by practical consequences for timescale (smaller numbers of cases but each with several judgements of best interests vs. many synchronic judgements), miles to be travelled and time spent in distinct requests for ethical clearance. There was also a question of validity: how many cases would be needed to get reliable data? What struck me was how tricky that question seems for richly detailed qualitative social science (not just a matter of confidence intervals and chi square tests as for quantitative data). ‘Oh about 15’ was the accepted answer to one such question ‘That seems about right’. That, I understood was the number that past experience of this kind of inquiry, with these kind of questions, suggested was needed to get the same answers repeating. How delightfully a matter of skilled judgement even the empirical aspect of the research promises to be.