Interests of others

In rare cases the interests of others may be a factor in the decision. Thus, bone marrow or organ donation may be appropriate if it is likely to ensure a close bond with a caring relative or indeed the survival of someone to whom the patient feels close. In such cases, careful thought needs to be given to the impact that donation will have on the donor and their relationship with the donee.

This issue was recently before the Court of Protection in An NHS Foundation Trust v MC where the court was reminded that the best interests assessment is not to be narrowly construed as a test of ‘self-interests.’ P’s actual wishes may be altruistic and not in any way self-interested, and are highly relevant in such cases. In MC, the court granted the application and concluded that it was in P’s best interests to undergo the harvesting of blood stem cells in order to donate them to her mother, who was suffering with leukaemia.

In this country, altruistic tissue donation by a live donor is regulated by the Human Tissue Authority (HTA). The HTA holds the statutory responsibility for giving authorisation for the procedure where the donor is a child or an adult who lacks capacity.

The unusual case of SSHD v Sergei Skirpal also demonstrates the court’s broad approach to the best interests analysis. In this case, blood samples, for the purposes of testing and analysis, were sought from Mr Sergei Skripal and Ms Yulia Skripal following their exposure to a nerve agent in Salisbury.

In permitting the taking of samples for the purposes of testing, Williams J considered that, if capacitous, the Skripals would likely have wanted ‘to support the UK government in taking steps on the international plane to hold those responsible to account’. He went on to say that the Skripals would probably have wished to see that justice was done, and to secure the best information following the commission of a serious crime. The court therefore held that the taking and testing of blood samples for the purposes of further investigation and verification would be in the Skripals’ best interests, notwithstanding the fact that these tests would be of no direct medical benefit to them.