Best Interests beyond the law: unwritten judicial decision-making in the time of Covid-19
Authors: Watkins, M. and Stickler, R.
Conference: Mental Diversity Law Network Conference
Dates: 1 June 2021
Abstract:An act done, or decision made, under the Mental Capacity Act 2005 for or on behalf of a person who lacks capacity must be done, or made, in his best interests. “Best interests” is not defined by the MCA but section 4 provides a statutory checklist of factors which must be take into account. Unarguably, the Court of Protection has consistently grappled (and often struggled) with many fundamental questions relating to the interpretation and application of best interests: how is best interests different from a substituted judgment test; is there a hierarchy amongst the section 4 factors; what is meant by “all relevant circumstances” (s.4(2)); how should P be permitted and encouraged to participate as fully as possible in decisions made on her behalf (s.4(4)); what is the difference between supporting P to make a capacitous decision (ss.1(3) & 4(3)) and supporting P to be involved in best interests decision making (s.4(4)); what is the difference between P’s wishes and feelings and P’s beliefs and values (s.4(6)); what is meant by “other factors that P would be likely to consider if he were able to do so” - does this include altruistic motives and concern for others (s.4(6)); should the degree of P’s capacity impact the weight given to her wishes and values; how should the court approach wishes that appear not rational, sensible or capable of sensible implementation in the particular circumstances; how should the court navigate a conflict between P’s values and wishes and/or P’s capacitated and incapacitated wishes and/or her physical, emotional and psychological welfare; and ultimately is best interests simply reduced to a question of best option and what is available to P on the ground.
These questions have been carefully explored by the AHRC-funded project, Judging Values and Participation in Mental Capacity Law via interviews with 40 practitioners (solicitors and barristers) specialising in mental capacity law and 12 retired judges who made best interests' determinations as nominated judges of the Court of Protection and/or under the High Court’s inherent jurisdiction. This paper will present the empirical data and specifically explore how best interests is understood and applied in practice, how decision-makers navigate and evaluate various and competing factors and importantly, the ethical commitments which are central to P-centric best interests decision making.
Source: Manual