What is a Best Interests case? Four-part drama with Michael Sheen discusses a child's right to live or die

A parents’ battle to keep their ill child alive is at the centre of a new BBC drama which aired on Monday (12 June), but for some people this is not the plot of a programme, it is their real life.

Although the show, which is called Best Interests and stars Michael Sheen and Sharon Horgan, is not inspired by one real life particular case, viewers may be reminded of the recent high profile cases of Archie Battersbee and Charlie Gard when they watch it. The four-part series is, however, based on real legislation which is complex and sometimes difficult to understand.

The Best Interests legislation allows for others to make important decisions for people who are not in a position to be able to do so themselves because they are incapacitated in some way. But it can only be applied to adults. Where children’s treatment is concerned, the law becomes much less clear. So what exactly does the Best Interests legislation mean for adults and what happens when decisions need to be made about a child’s care? Here’s what you need to know.

What is Best Interests legislation?

The Best Interests legislation was introduced under the Mental Capacity Act 2005, and applies to adults in England and Wales. The legislation doesn’t define exactly what best interests are, as this will differ from person to person, but a best interests decision can only be made in relation to choices that a person would normally make for themselves if they were able to - for example, in relation to their medical treatment. To use these rights it must be ensured that the person doesn’t have the capacity to consent to questions about their own care for themselves. It is important to note, however, that this Act can only be applied to adults and not children.

When can a Best Interests decision be made?

The Act does give people the legal right to take certain steps relevant to someone’s care and treatment. This includes things like:

• Helping someone around their home
• Deciding if someone should move
• Deciding if someone should have a serious operation    
• Deciding how a person should be supported with personal care
• How routine medication should be provided
• What a person should be fed or what they should wear
• How someone’s money should be spent in routine financial matters
• When a person should visit the doctor or dentist

The Act also outlines the things that decision makers need to consider before acting in someone’s best interests. They include:

• The incapacitated person’s feelings and wishes, if known, and their values
• The circumstances for the person such as their age and likelihood of recovery
• Whether the decision could be made by the person themselves in the future
• The thoughts and feelings of the incapacitated person’s loved ones

What happens if a Best Interests decision can’t be agreed upon?

If it is thought that serious treatment is required, a decision maker may need to ask the Court of Protection for permission to give it to the incapacitated person. This could apply, for example, if it is thought that a person needs to have medical treatment which will have life-lasting effects. 

If there’s a disagreement about whether a decision is in a person’s best interests, then the Court of Protection may have to settle the disagreement. For example, this may be disagreeing about whether or not someone should move into supported living accommodation.

What are the Best Interests for children?

The law states that if any decisions must be made about a child’s care then the child’s welfare is the most important thing, as outlined in the Children Act 1989. An issue can arise, however, as seen in the aforementioned Gard and Battersbee cases, because there is no proper definition of best interests or welfare where children are concerned. There can then be disagreements between the child’s family and medical professionals over what is in the best interest of the child, and then a court is asked to make a decision. Again, this is seen in the real life Gard and Battersbee cases and also the fictitious story portrayed in the BBC Best Interests drama. In all of these cases, the parents argue that their children have a right to live and could lead healthy lives with their support, but doctors disagree and believe the kindest thing is to end treatment.

The law does support the rights of the parent to make decisions for their children - but courts step in when they believe that the choice of the parents may cause more problems for a child, even though their intentions are well-meaningly motivated by love and care for their child.

Mr Justice Baker said: “In most cases, the parents are the best people to make decisions about the child. The court or any other public authority has no business interfering with the exercise of parental responsibility unless the child is suffering or is likely to suffer significant harm as a result of the care given to the child”. He was speaking in 2014 in response to the high profile case of Ashya King, a little boy who was taken out of a UK hospital by his parents to go abroad for cancer treatment against the advice of doctors.

More recently, Charlie Gard’s parents launched a call for Charlie’s Law in 2020, which asked for parents’ views to be ‘listened to and taken into account’ when making decisions about a child’s treatment, but the law was not passed. The UN Convention on the Rights of the Child (UNCRC) does, however, protect a child’s right to survival and development.