6 - Softening the Capacity Cliff Edge

Summary

This chapter will explore how the provisions governing best interests assessments ought to be reformed so as to better ensure that an agent’s authentic desires are being prioritised in decisions being taken about them. The starting point should be that the assessor ascertains ‘so far is reasonably practicable’ the individual’s wishes, feelings, beliefs, and values. This should then be supplemented by a presumption that the agent’s wishes and feelings will be determinative of what is in their best interests, except when giving effect to them will expose the person to a risk of significant harm. Even where the harms are significant, however, there will still be occasions where the agent’s wishes and feelings should nonetheless take precedence; where to do otherwise would involve frustrating their deeply and authentically held beliefs, values, or commitments. This chapter will highlight some of the potential considerations which ought to guide assessors in these circumstances. It will propose that assessors be provided with a list of factors that they must take into account when determining the degree of weight to be ascribed to the agent’s wishes, which reflect these considerations.