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A local authority v TA. 2021;

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Dudgeon v United Kingdom. 1981;

K v LBX. 2012;

Nursing and Midwifery Council. The code. Professional standards of practice and behaviour for nurses, midwives and nursing associates. 2018. (accessed 1 February 2023)

R (on the application of Oliver Leslie Burke) (Respondent) v General Medical Council (Appellant) & The Disability Rights Commission & Others (Interveners). 2005;

Z v Finland. 1997;

Ensuring the necessity of best interests determinations

09 February 2023
Volume 32 · Issue 3


Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses the requirement that acts and decisions made in a person's best interests are a necessary and proportionate interference in their life

Registered nurses have a professional duty under standard 4 of The Code (Nursing and Midwifery Council (NMC), 2018) to act in the best interests of people at all times and, in particular, to:

‘Keep to all relevant laws about mental capacity that apply in the country in which you are practising, and make sure that the rights and best interests of those who lack capacity are still at the centre of the decision-making process.’

NMC, 2018: 4.3

In England and Wales the Mental Capacity Act 2005 regulates acts and decisions made in the best interests of a person who lacks the mental capacity to make the decision themselves. To ensure the person's rights are paramount, the principles of the Mental Capacity Act 2005, set out in section 1, require that:

These principles acknowledge that acting in a person's best interests is an interference in that person's life and rights. The 2005 Act requires that any interference can be justified under Article 8 of the European Convention on Human Rights (ECHR) (1950).

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