Best Interests

What are ‘Best Interests’ disputes?

‘Best Interests’ is the term used to describe issues surrounding the proposed treatment or withdrawal of treatment for critically or terminally ill patients. These disputes usually arise when a patient is in intensive care, and is incapacitated or unconscious and unable to communicate their wishes for themselves. The issue us often between the patient’s relatives and the clinical team. A particularly tragic, high profile example is that of Charlie Gard in 2017, when the medical team and parents disagreed about whether experimental treatment was in the ‘best interests’ of the child.

Occasionally, especially in the case of older people, a patient may have previously set out their wishes, providing instruction on how they would like to be treated in the event of serious illness and loss of mental capacity, by means of power of attorney or Living Will. More often, however, no such instructions are available and in those circumstances, doctors determine the course of medical treatment based on what they reasonably believe to be in the best interests of the incapacitated patient.

Understandably, the main concern of family members is often to prolong the life of the patient by whatever means available. With advances in modern medicine, there are many interventions that can be used to sustain the life of an unconscious patient for a long period. The medical team, however, might propose to discuss ‘end of life’ palliative care on the basis that further treatment would not be in the patient’s best interests. Conflicts arise when there is a prolonged disagreement about where the best interests of the patient lie.

Independent Evaluations – independent of the NHS

For any form of dispute resolution to work effectively for Best Interests disputes, it is imperative that the parties can be certain that the process is completely impartial. Independent Evaluation is exactly that in precisely the same way as Judges are entirely impartial. Unlike other ADR providers, IE has never and will never enter contracts with Health providers or seek ‘preferred supplier status’ with them.

Bespoke model for ‘Best Interests’ Evaluations

The difficulty of trying to resolve Best Interests disputes through the courts is widely recognised: it can be excessively prolonged, it is invariably stressful and painful for relatives and it is definitely excessively expensive. As anyone following the passage of such cases through the court will know, the process sucks up vast sums of money which, once spent, are no longer available for the treatment of patients in need. Furthermore, the Court judgment rarely brings the different sides of the dispute together in a way that assists the ongoing therapeutic relationship. In response to the particular demands of Best Interests disputes, IE continues to develop a bespoke version of our successful process to ensure the best possible outcome for both parties. ‘Best Interests’ Evaluations have been designed especially for Best Interests disputes.

The key benefits of our standard IE process are that it delivers the best possible outcome for both parties and that it does so in weeks instead of years. Best Interests Evaluations follow the same successful, proven process but are conducted by two top tier Evaluators rather than one. This is because we believe that in order to achieve a forensically accurate assessment of any Best Interests dispute, the process must draw on top level intensive care (ICU) consultant expertise, as well as top tier legal expertise. Best Interests Evaluations are evaluated by a top tier legal Evaluator in conjunction with a top tier medical Evaluator, both of whom are completely independent of the NHS.

Together with IE’s Intensive Care (ICU) Evaluations, these are the only forms of early neutral evaluation in the UK that are conducted jointly by both legal and medical Evaluators.

Why refer a Best Interests dispute to IE?

• IE is recognised by senior members of the judiciary as one of the best and quickest forms of dispute resolution.
• IE has a highly successful track record in resolving difficult disputes in which opposing parties have become entrenched.
• Best Interests Evaluations are conducted by two Evaluators – a top tier QC or Judge with vast experience in medical disputes and a top tier medical Consultant with specialist expertise in the Intensive Care (ICU) environment.
• Best Interests Evaluators (legal and medical) practice independently of the NHS.
• The IE process allows the parties to have private face to face discussions with the Evaluators in a way that is impossible in Court. This creates conditions that are far more conducive to achieving an optimal settlement, whilst also protecting the ongoing therapeutic relationship.
• IE is cost effective. The cost of the Evaluation, which is born by the hospital trust, is much lower than the cost of litigation/going to court. With IE, there is no cost at all to the patient or relatives, so private means or crowd-funding are not necessary.

Other Intensive Care (ICU) related disputes

As well as Best Interests disputes, other conflicts can arise whilst a patient is in an Intensive Care Unit (ICU). ICU disputes are usually about the failure of treatment already received or about what to do next. See Intensive Care disputes.

Best possible chance of resolving Best Interests disputes

IE is designed to provide the best possible chance of resolving Best Interests disputes, to the satisfaction of all involved. The bespoke IE process enables relatives and clinicians to gain a better understanding of each other’s position, and, assisted by the Evaluators, to agree the best way forward. The process can also restore relations between patient/relatives and clinicians in a way that is just not possible in litigation, enabling them to resume a positive and mutually respectful relationship.

What to do next

If you are involved in a Best Interests dispute, whether you are a relative of the patient, the solicitor representing the patient/relative, or a solicitor representing NHSR or an NHS Trust, please contact us at Independent Evaluation. We believe we offer the best chance of resolving your dispute and enabling the parties to move forward.

For more information or to refer your dispute for Evaluation, call Jonathan Bishop on 020 3383 1000 or complete our enquiry form.