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University of St. Thomas Journal of Law and Public Policy, 2021
![Research paper thumbnail of EXPERIMENTAL TREATMENT - BEST INTERESTS AND MENTALLY INCAPACITATED PATIENTS. B v D [2017] EWCOP 15](https://attachments.academia-assets.com/60669896/thumbnails/1.jpg)
](The court in B v D has to decide as to the proper approach to determining whether a particular l... more The court in B v D has to decide as to the proper approach to determining whether a particular life-sustaining treatment is in the best interests of a mentally incapacitated patient. The Mental Capacity Act deals with the procedures for decision-making on behalf of mentally incapacitated adults. The Act is intended to encompass people who suffer from such a degree of mental illness or disability that they are incapable of taking decisions for themselves. Incapacity can arise in a wide variety of mental conditions such as mental handicap, mental infirmity, mental illness, brain damaged, physically ill or handicapped people.
The legal decision for D was based upon an assessment of his mental capacity, best interests and the medical treatment. The central question is whether it would be best to provide the experimental treatment D, or to withdraw treatment and allow him to continue living his life with his mental condition. On one hand experts feel that it is likely that D would experience pain and discomfort from continued treatment which would most likely not make a difference to his health. On the other hand, going for the experimental treatment might not be so terrible as there is chance of recovery which would greatly alleviate his suffering.
Usually, patients are offered experimental procedures because there are no other alternatives for them, these involve those who are terminally ill and are at a risk of dying and have no alternative treatment available and they may accept because of the chance that they would benefit from it, even though it is more likely that the results will benefit others but at the same time, should those with no other hope be denied the smallest, remotest chance of benefit, or is it discriminatory and unethical to automatically exclude them from experimental procedures?
I don’t agree that the court should stop people who are willing to subject themselves for experimental treatment especially if that seems to be their only hope. This is in a way based on the argument that we are all obliged to participate in research and that where there is some reasonable likelihood of a beneficial effect, it is appropriate for risky research to proceed . And especially where they have supportive family and personal funds. Someone has to be the experiment so why not allow these patients pave the way for experimental treatment. It will be understandable if this treatment has to be funded by NHS, then the courts out of their own discretion can decide to refuse to allocate funds to such treatment . Where the patient has the funds to go abroad for this treatment, has shown a great desire to be subjected to this treatment and also has a family who is ready to support him fully, then he should be allowed to take the risk.
We all have Human Rights. These are the basic rights and freedoms that belong to everyone and whi... more We all have Human Rights. These are the basic rights and freedoms that belong to everyone and which are based on shared values like dignity, fairness, justice, and equality. The law sets out a min-imum standard for how we should all be treated by international and national, including the NHS. These rights are not just abstract principles. The advent of the Human Rights Act 1998 has brought this to the forefront and demonstrated that there is a danger of compromising the fundamental hu-man rights of mentally vulnerable individuals. Human rights apply to everyone, and cannot be tak-en away except in specific, pre-determined situations and according to law. Within this essay, I ex-plore a number of situations in which key human rights need to be restricted, usually to protect an individual with mental health issues or to protect others who may be affected by that individual’s actions or behaviour. When thinking about restricting rights, any such action should be proportion-ate. This means that mental health care practitioners must be able to show that they have taken the individual’s rights into account, and that any restriction is kept to the minimum possible and is nev-er excessive. In a hospital setting, any restrictive policies should not adopt a blanket approach that affects all patients but should be assessed and applied on an individual and proportionate basis.
University of St. Thomas Journal of Law and Public Policy, 2021
The court in B v D has to decide as to the proper approach to determining whether a particular l... more The court in B v D has to decide as to the proper approach to determining whether a particular life-sustaining treatment is in the best interests of a mentally incapacitated patient. The Mental Capacity Act deals with the procedures for decision-making on behalf of mentally incapacitated adults. The Act is intended to encompass people who suffer from such a degree of mental illness or disability that they are incapable of taking decisions for themselves. Incapacity can arise in a wide variety of mental conditions such as mental handicap, mental infirmity, mental illness, brain damaged, physically ill or handicapped people.
The legal decision for D was based upon an assessment of his mental capacity, best interests and the medical treatment. The central question is whether it would be best to provide the experimental treatment D, or to withdraw treatment and allow him to continue living his life with his mental condition. On one hand experts feel that it is likely that D would experience pain and discomfort from continued treatment which would most likely not make a difference to his health. On the other hand, going for the experimental treatment might not be so terrible as there is chance of recovery which would greatly alleviate his suffering.
Usually, patients are offered experimental procedures because there are no other alternatives for them, these involve those who are terminally ill and are at a risk of dying and have no alternative treatment available and they may accept because of the chance that they would benefit from it, even though it is more likely that the results will benefit others but at the same time, should those with no other hope be denied the smallest, remotest chance of benefit, or is it discriminatory and unethical to automatically exclude them from experimental procedures?
I don’t agree that the court should stop people who are willing to subject themselves for experimental treatment especially if that seems to be their only hope. This is in a way based on the argument that we are all obliged to participate in research and that where there is some reasonable likelihood of a beneficial effect, it is appropriate for risky research to proceed . And especially where they have supportive family and personal funds. Someone has to be the experiment so why not allow these patients pave the way for experimental treatment. It will be understandable if this treatment has to be funded by NHS, then the courts out of their own discretion can decide to refuse to allocate funds to such treatment . Where the patient has the funds to go abroad for this treatment, has shown a great desire to be subjected to this treatment and also has a family who is ready to support him fully, then he should be allowed to take the risk.
We all have Human Rights. These are the basic rights and freedoms that belong to everyone and whi... more We all have Human Rights. These are the basic rights and freedoms that belong to everyone and which are based on shared values like dignity, fairness, justice, and equality. The law sets out a min-imum standard for how we should all be treated by international and national, including the NHS. These rights are not just abstract principles. The advent of the Human Rights Act 1998 has brought this to the forefront and demonstrated that there is a danger of compromising the fundamental hu-man rights of mentally vulnerable individuals. Human rights apply to everyone, and cannot be tak-en away except in specific, pre-determined situations and according to law. Within this essay, I ex-plore a number of situations in which key human rights need to be restricted, usually to protect an individual with mental health issues or to protect others who may be affected by that individual’s actions or behaviour. When thinking about restricting rights, any such action should be proportion-ate. This means that mental health care practitioners must be able to show that they have taken the individual’s rights into account, and that any restriction is kept to the minimum possible and is nev-er excessive. In a hospital setting, any restrictive policies should not adopt a blanket approach that affects all patients but should be assessed and applied on an individual and proportionate basis.