How the court decides on best interests: part 2 What about this?

In part 1 of this series we looked at how to identify the available options, by talking about P and his future residence and care. The court is satisfied that there are currently 3 available options, Blue Care Home, Yellow Cottage supported living and Q’s house (his sister) with care from Pink Care Agency. So now it has to consider the advantages and disadvantages of each of these options.

In practice, this isn’t always a step by step process. The court might look at the available options in June, see evidence on the advantages and disadvantages of those options but then in September there are different options available, so it has to go over that part again. Because nothing is entirely neat when dealing with so many variables. But I’m going to continue explaining this in a staged way, because I think it’s easier to understand the principles that way. And once you understand the principles, you can then start to apply them to whatever messy, real world scenarios you find yourselves in.

So in our example, the local Green Council prepares a balance sheet of the benefits and burdens (or advantages and disadvantages, or whatever terminology they prefer) and exhibits it to a statement prepared by the social worker. This one is a pretty good one, with clear explanations of the benefits and burdens to P as an individual. These take many different forms, from bullet points to colour coordinated tables. In truth, content is what the court and us lawyers are looking for, not format so there is no real need to get to hung up on what the balance sheet looks like, unless one of the lawyers (or the judge) is making an issue of it.

What is important is that all relevant advantages and disadvantages are considered. Because that is the second thing that gets discussed in court when determining best interests. Too often these documents are rushed and do not include all of the important factors.

In this case, the social worker says that the advantages of Blue Care Home are that:

1) care is available to him 24 hours a day

2) his care needs are met

3) he is now settled there and has developed good relationships with staff

4) his family can visit

5) staff can adapt to his needs as they change

6) he has a peer group there, with whom he enjoys interacting

The only disadvantages identified are that P is deprived of his liberty and that not all of his family agree with the placement.

They also identify advantages and disadvantages for the other options as well. And Q and the Official Solicitor consider the statement and Q submits evidence in response. In relation to Blue Care Home, she says that a number of disadvantages have not been considered. For example, she says that P does not actually like a number of the other residents, and will not go in to common areas of the home in case they are there. Also, she says that because Blue Care Home is further out of town, P is no longer able to go to his volunteering role at an animal rescue centre, which he had always enjoyed previously.

The solicitor instructed by the Official Solicitor visits P at Blue Care Home and files a statement including a note of their meeting with him. In that note, it is recorded that P said he did not want to stay at Blue Care Home. He also said that he wants to be able to go out more often, as he is bored. The solicitor also goes through the records from Blue Care Home which have been disclosed to them as part of the proceedings and confirm that P has been refusing to go to the communal lounge for a number of weeks after he fell out with another resident.

They agree that this is relevant information that should be taken into account.

10 days before the hearing, the parties meet again. They agree that there are further disadvantages to Blue Care Home that were not set out in the initial balance sheet. If it were just a case of one or two factors not being accounted for, then the parties might agree that having this acknowledged in the minutes of the meeting is sufficient. The minutes will generally be filled with the court and so the court will still have all of the relevant information before it makes a decision. But in this case, because there were a lot of factors that had been overlooked, the Official Solicitor wants a full new balance sheet and asks the court to direct that Green Council provide this within 4 weeks after the next hearing.

So what the Official Solicitor and Q have done is raise relevant factors that Green Council could not evidence it had taken into account. Whilst the social worker may have thought about these things, their failure to record that they had done so means that the court isn’t able to make a decision yet.

Just as in part 1, if there are particular time constraints, then the court might make a decision on the information it has at the time. Or rather than require more written evidence, the judge might simply ask the social worker to explain their reasoning more thoroughly as oral evidence in the hearing if it needs to make the decision quickly.

In this case, though, P is safe and not distressed so the judge is prepared to give the local authority more time to consider the balance sheet.

A lot of the time, identifying factors that haven’t been taken into account is an exercise of logic and empathy, thinking about what you would be taking into account if you had to make that decision. That is what Q did, she simply raised a fact that was relevant but hadn’t been addressed. Sometimes it is as simple as noting that yes family can visit theoretically, but practically it is too far away from parents and they don’t drive so it isn’t actually accurate to say family can visit. This comes up a lot in real world cases.

Often it is a bit more legalistic though, requiring the parties to go through section 4 of the Mental Capacity Act 2005 and checking that all of the statutory factors have been considered. In this case, the Official Solicitor was raising the issue of P’s own views, which is a key statutory factor. Green Council has attempted to consider this by noting that he was settled and had good relationships, but they had skipped the rather crucial step of asking P what he wanted.

Green Council had partially accounted for the views of others interested in P’s care by noting their disagreement, but hadn’t gone in to the reasons for their disagreement, so that statutory factor hadn’t been fully addressed either. P’s beliefs and values are also not evident, and that is something that the social worker will need to explore with his family in more detail as well.

So it’s usually a combination of working through the statutory factors and articulating the logical thought process involved in decision-making. And the clearer this is, the more likely a court will be able to make a decision quickly. And if you are a party disagreeing with someone else’s best interests analysis, one of the ways to do that is to point out any factors that have not been addressed, which are advantages of the option you favour, or disadvantages of the option the other party favours.

It’s not just about making a pros and cons list though, and we’ll look at the next step in my next post.

In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of either that local authority or organisation

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