Best Interests and Non-consensual Research

The issue of clinical research on adults who are unable to provide consent (non-consensual research - NCR) is a challenging area of law, which has gained prominence in New Zealand and elsewhere. In New Zealand, the legality of such research depends on a best interests test. It has been claimed, however, that a best interests test cannot be satisfied in NCR, and that a new legal standard is required to allow valuable research to appropriately proceed. This article argues that a best interests test can be satisfied in NCR and should be reconsidered as a suitable benefit-harm standard. Furthermore, there is a possibility of maintaining a best interests test as well as adopting a new, more specific standard and other recommendations for reform. These two components could be seen as consistent, or even synergistic, and this dual approach should be considered in current discussion.