This is the third post in my series about how the Court of Protection makes best interests decisions. In practice, it’s a messy process, but I have broken it down into stages to make it easier to understand. Or that’s my intention anyway. If I’m only confusing you further, I do apologise!
So we started out by identifying the available options, which is a good place to start for any decision to be made in any circumstances. After that, we identified the advantages and disadvantages (benefits are burdens, risks and rewards or whatever terminology you prefer). What happens next?
Well as you might have guessed, it isn’t just a case of adding up the number of advantages and disadvantages for each option, and going with whichever option has the highest number. I have never met a person who, when faced with an important decision, made their choice in such a bare, mathematical way. So this isn’t how best interests decisions should be made either
There will, inevitably be some factors that are more important than others in the decision-making process. The courts tend to refer to these as factors of ‘magnetic importance’. Likewise, there will be some that will carry little to no weight. And this is where the real skill in best interests decision-making comes to the fore. It’s also where case law becomes the most helpful.
There are countless examples of where the court has made it clear that P’s wishes are to be given significant weight. Aintree is the most commonly quoted example of this. Re M also contains some very helpful comments as to the value to be given to P’s quality of life, rather than always striving to prolong life. However, the courts have largely stopped short of saying that P’s wishes and feelings have to be followed and has, where appropriate, made decisions contrary to what P wants. It simply looks for good reason to go against those wishes, which will vary from case to case.
Some factors are also to be given very little weight. Reading any number of the cases on coronavirus vaccination (SD, for example), it is clear that family member’s views are not necessarily to be given the same weight as P’s own wishes. This can seem counterintuitive to some family members, who believe that they should be able to make decisions in place of their loved ones. It’s particularly an issue when the court is concerned with young people, where parents are used to making decisions and can be resistant to that control being reduced. But it is true that the court is concerned with P’s views and if there is no evidence that P would share their views, then those views are not going to carry much weight with the judge.
Other people’s interests are not given much weight either. There are exceptions, where the person is likely to want to be altruistic (the Skripal case, for example or the well reported stem cell case) or where preventing harm to others also prevents harm to P (ZZ for example). But generally, these will not be given as much weight.
So with our example of P, the solicitor instructed by the Official Solicitor speaks with P about the options available and in their statement say that P said ‘I like it where I am’, he said the other place he visited was ‘nice too’ and he liked the idea of having a garden. When asked if wanted to live with Q he said ‘sometimes, but not always’ which was interpreted to mean he liked overnight visits with her but did not want to stay there permanently.
The Official Solicitor then proposes that P move to Yellow Cottage as it is the property that P was shown that had a garden, and it would be less restrictive of his rights and freedoms than him remaining in a care home when his needs do not justify this. It is also closer to activities that P enjoys and away from the other residents that he doesn’t like.
Q says P should come live with her, because this ‘what he would want’. She says family is important to them and they should look after each other. She is also sceptical of the support P will get if he goes to Yellow Cottage because she worked in a supported living house a few years ago and didn’t think the people there were well looked after.
The local authority says that P should stay where he is, as he is happy there. The social worker says that Q’s views are her own, not P’s, and there is no evidence he would agree with her. They also say that because P says he’s happy where he is, staying there is not more restrictive, especially because he’d need round the clock care in supported living as well.
So each party is applying the best interests factors, but reaching a different conclusion because they are each giving different weightings to each of the factors. The local authority is treating P’s expressed view about his current placement as the most important factor, whilst the Official Solicitor is giving weight to his views on a more holistic way, and also to a desire to promote his independence and reduce restrictions on his freedoms. Q is giving weight to what she thinks P’s beliefs and values are, as well as her own views as someone who is close to P.
These views are all shared during a round table meeting in advance of the next listed hearing and it is agreed that there is a dispute which is unlikely to be resolved. The parties ask the court to list a contested hearing.
We’ll deal with how the court will reach that determination next time.
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