How the court decides best interests: when it comes down to it

I have broken down the stages of the process of reaching a best interests determination through the Court of Protection in a series of posts on this topic. If you’ve come across this post without reading the previous three posts, then you might want to start at the beginning and work your way through

I’ll keep to the same hypothetical example of P, a young man with a learning disability. The proceedings were brought by Green Council for a decision about where P should live. P is represented in the proceedings through the Official Solicitor, as litigation friend. His sister, Q, is also a party to the proceedings. They all have different views about what they think is in P’s best interests. Green Council recommends that P reside at Blue Care Home in the long-term, whilst the Official Solicitor believes a move to Yellow Cottage, a supported living facility is in his best interests and Q wants him to live with her and receive support there.

It is remarkably uncommon to get to a final hearing and there still be a dispute about best interests. The process is designed to promote discussion and often through various meetings and statements being prepared an agreement is reached.

But in this case, the parties don’t agree, and so the court has to decide if there is any more information it needs before a determination can be reached. So the judge will look at the bundle of documents to see what information it has already and if there are any gaps.

The bundle includes, amongst other documents, four statements by the social worker employed by Green Council, as well as two statements by Q. The solicitor representing P has submitted three detailed attendance notes of their conversations with P. A best interests assessor has also met with P for the purposes of a standard authorisation whilst P is at Blue Care Home and their assessment is included. The minutes of a best interests meeting are also before the court and minutes from three round table meetings.

If the court does not consider it has information in relation to any of the factors in section 4 Mental Capacity Act 2005, it can make directions for that information to be provided by the appropriate party or parties, but it also has other options. If there is insufficient information as to P’s wishes and feelings, the judge may choose to meet with him themselves so he has an opportunity to express his views directly. If that takes place, then P’s solicitor will generally attend in order to take a note of the meeting which will be approved by the judge and then shared with all of the parties.

It is also open to the court to direct that a Court of Protection visitor meet with P to obtain his views, but that would not generally be required where there is a litigation friend who has been able to obtain P’s views.

Where there is a dispute as to best interests, the parties might be asked to consider instructing an independent social worker to give a view on P’s best interests. How this works is that if a party wants to instruct an expert, they will need to contact an expert or experts and get quotes and CVs of suitable experts. These are shared with all of the parties and they’ll try to agree as to who is best to instruct. It is very rare for the court to allow parties to individually instruct an expert.

When permission is given by the court, then the parties will agree a letter of instruction setting out the relevant background and the questions the expert will be asked. The expert will get access to all of the court papers and access to their relevant health and social care records. And they’ll prepare a detailed report. The court isn’t required to agree with the expert’s conclusions, but will take those conclusions into account when making that decision.

But in this case, the judge considers that the cost of instructing an expert is disproportionate given the limited scope of the dispute. So instead a contested hearing is arranged.

In advance of the hearing, each party prepares a document referred to as a position statement which summarises their argument and the evidence they rely on. This outlines their views for the judge and helps to structure the hearing.

At the hearing the judge hears evidence from the social worker, allowing them to further explain their reasoning and answering questions from the other parties. The judge also hears evidence from Q, again allowing her to explain her position in detail and answer questions. If an independent expert had been instructed, they would also have given evidence in the hearing.

Each party then makes closing submissions which are final summaries and arguments aimed at persuading the judge of their view. The lawyers will set out how the case law applies in this case, and how it has led them to the conclusion they have reached.

And then the judge will make a decision. They will often reserve judgement, which means they don’t make a decision on the day. Instead they will take some time to read back over all of the papers and written arguments and then prepare a fully reasoned judgement.

In doing so, they will work through section 4 themselves applying the factors as required and deciding how much weight to give each factor. They will consider which evidence is the most convincing, and how each party has applied the case law. Essentially, they will follow the same process that the professionals do, but with the benefit of a lot more evidence than professionals have, presented in a much clearer way.

The judge applies their experience and ultimately makes a decision. For the purposes of this article, it doesn’t really matter what that decision is, but it is likely, on these specific facts, that the judge would consider a move to Yellow Cottage to be in P’s best interests. The judge could just as easily prefer any of the other options though, and there is certainly no particular leaning towards any one party or the other.

This was going to be my last post in this series, but I have now decided to do one more, showing how this looks in a more real world situation.

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

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