Tag Archives: best interests

In whose best interests? Transgender Children: Choices and Consequences

This is a post by Sarah Phillimore. I am concerned that the decisions by Mr Justice Hayden in Re J [2016] are being overlooked in the ongoing debate about children who want to ‘change genders’, and in particular the role played by the Mermaids organisation. 

First disclaimer. I am not a bigot.

It has, and has always been my view from when I was very young, that if consenting adults wished to dress in a particular way, have sex in a particular way or get married to someone they loved who loved them back, that was absolutely their business and no concern of mine, other than to be happy for them that they had the chance to live their best life. As a disabled person I am well aware of those times in my life when I have been denied opportunities, been insulted or attacked for a physical characteristic that I did not ask for and was completely out of my control. I would never knowingly inflict that kind of harm upon another.

But I am also a lawyer. So by training and by temperament I am not interested in what people ‘feel’ about any particular issue. I am interested about what they can prove. What evidence do they bring to the table to support their fears or worries?

Some advice; if you find what I say ‘hateful’ and wish to have me removed from social media or my employment then of course you must take what ever steps you think are appropriate. But please remember I don’t have an employer; I am a self employed sole trader. If you think my words mean I am not fit to be a lawyer, please refer the matter to the Bar Standards Board. 

Please also note that I will not agree with you and will use my best efforts to challenge and reject any complaints made.

Second comment. We cannot sacrifice facts for feelings.

In the on-going and harmful ‘debate’ about trans women with intact male bodies in female spaces (such as sports or prisons) we find very clear and horrible illustrations of what happens when people bring feelings to a fact fight; when both sides of the ‘debate’ appear to believe that they are supported by facts and reasons and the other by unreasoning hysteria and bigotry. 

While adults may insult others as they wish, provided they don’t step over the line dividing freedom of speech from criminal harassment, I am concerned here about what is being argued on behalf of children. The need for clear and honest debate is particularly important when talking about the ‘rights’ of children to transition and to be supported/encouraged in accessing surgery or medication to do so.

i have no interest in controlling what consenting adults do to other consenting adults and think such attempts to control is a moral wrong, unless and until of course their activities impinge on my ability to live my life. However, as a lawyer who has worked in many years in child protection law, I do have a very keen interest in what adults do to children, often purporting to act in ‘their best interests’ when, to the objective outsider, it seems anything but.

Much of the increasingly anguished ‘debate’ about transitioning is now very clearly focused on children and at what age they could or should be supported to make the ‘decision’ to transition from ‘male’ to ‘female’ or vice versa. This ‘transition’ is often required to be supported by medication or pretty serious surgical intervention. The impact on the child’s body as he/she grows will be serious, often leading to infertility or loss of sexual function.

I have become increasingly concerned about the role played in all of this by the Mermaids organisation. 

They describe themselves in this way:

Mermaids is passionate about supporting children, young people, and their families to achieve a happier life in the face of great adversity. We work to raise awareness about gender nonconformity in children and young people amongst professionals and the general public. We campaign for the recognition of gender dysphoria in young people and lobby for improvements in professional services.

The decisions in Re J [2016]

I am worried that the continuing debate and discussion over the role of the Mermaids organisation has overlooked a very important judgment from Mr Justice Hayden in July 2016 – J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016).

The Transparency Project wrote about the case and the media response here and summarised the court’s approach in this way:

Mr Justice Hayden heard the case over a number of days in the summer and, based upon the experts and professionals whose evidence he heard (along with that of the mother herself), the judge concluded that J was a little boy whose mother’s perception of his gender difference was suffocating his ability to develop independently – and was causing him significant emotional harm. He was placed with his father, where he quickly began to explore toys and interests that were stereotypically “boys”. The judgement is very clear that the father had brought “no pressure on J to pursue masculine interests” and that his interests and energy were “entirely self motivated” (pa 47). So, not forced to live “like a boy” (whatever that means) – but choosing (there is more detail in the judgment).

Importantly, Hayden J acknowledged that there are genuinely children who are transgender or gender dysphoric, and who present in this way from an early stage, but – and here is the crux of it – this child was not one of them. This was all about the mother’s position.

At para 63 of the July judgment, the judge commented on the expert opinion of the mother and how she presented:

When stressed and distressed, [M] becomes controlling, forceful and antagonistic. This reflects her underlying anxiety. She is actually very frightened and upset. She tries to sooth herself by taking control of situations but her interpersonal style is counter-productive. She does not negotiate well. She finds it difficult to compromise and situations become inflamed rather than de-escalated. In situations of interpersonal conflict, she protects herself from loss of confidence or face by unambiguously perceiving herself as correct which means that from her perspective, the other party is wrong. To acknowledge her flaws, even to herself, feels crushing and devastates her self-esteem so she avoids this possibility by locating responsibility and blame elsewhere. When she is unable to achieve the outcome that she wants, she resorts to formal processes and/or higher authorities: complaint procedures, The Protection of Human Rights in Public Law, the European Court of Human Rights, Stonewall and so on.”

It is clear that the mother was insistent with all agencies that J ‘disdained his penis’ and was being subjected to bullying at school etc. She could not provide any proof of this and the school denied it was happening. She was supported throughout by Mermaids who played a significant role in the development of a ‘prevailing orthodoxy’ that J – at 4 years old – wished to be a ‘girl’. That view was found by the court to have no bearing in reality and was a product of both ‘naivety and professional arrogance’ 

Mr Justice Hayden was highly critical of the local authority for getting swept up in this prevailing and false orthodoxy, commenting at paragraph 20 of the July judgment

This local authority has consistently failed to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. I propose to invite the Director of Children’s Services to undertake a thorough review of the social work response to this case. Professional deficiencies to this extent cannot go unchecked, if confidence in this Local Authority’s safeguarding structures is to be maintained.

A later judgment in October 2016 dealt with the aftermath of the boy’s removal and how he had settled with his father and to what extent these matters should be in the public domain. That judgment is here: J (A Minor), Re [2016] EWHC 2595 (Fam) (21 October 2016)

 

What happened after 2016?

Mermaids at the time were highly critical of these judgments and said they would be supporting the mother in a appeal. No application was made to appeal. They showed no humility or understanding in their press release of October 2016, insisting that the courts simply had not understood issues of gender identity. I assert that no one can in good faith make such argument if they had bothered to read the lengthy and careful judgments of Mr Justice Hayden.

Since 2016 Mermaids have continued – in my view – to show no understanding or humility. The current controversy is around a grant to their organisation of £500K by the Lottery Fund which is currently under review and has been the subject of some critical press attention. 

Children are – quite rightly in my view – protected as a vulnerable class of people in our legal system. Children below the age of 12 are highly unlikely to be considered to have the requisite maturity and understanding to make significant decisions about their lives that will impact well into adulthood. Even those older children who are ‘Gillick competent‘ may find that their wishes and feelings are not allowed to determine issues of significance; such as the right to refuse surgery.

The accepted wisdom of the majority of child psychologists is that a child under the age of 6 years is probably unable to express any view that does not align with his or her primary care giver. This is a relatively simple matter of stages of cognitive development and pure survival. The older a child gets the more their wishes and feelings carry weight, but they remain unlikely to be ‘determinative’ unless and until they age out of the protected class of ‘child’.

So why are we even entertaining any discussion that a 4 year old is in possession of all the facts and their consequences needed to make a serious decision about whether or not to keep or ‘disdain’ his penis? Particularly when organisations such as Mermaids and their supporters appear to wish to push for wholly regressive and offensive gender stereotyping such as little girls like pink and sparkly things and little boys want to play rough and get dirty. If a little boy wants to play with dolls and wear a dress, why does he have to ‘disdain his penis’ to do that?

What do we know about the implications of medical and surgical intervention for children?

Not only is a young child likely to be unable to grasp the necessary information to make an informed decision about transition, it seems that the adults around him or her do not yet even possess sufficient information to make a safe, informed decision on the child’s behalf. We appear to know more about the impact of puberty blockers on sheep than we do on children. Note comments from the Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust, cited below in Further Reading. Grateful thanks to @bettytastic to alerting me to this.

We do know something of the effect of puberty blockers on the brain development of adolescent sheep however. Professor Neil Evans of the Institute of biodiversity in Glasgow reported impairments to several functions, including a sheep’s capacity to find its way through a maze, which persist after stopping puberty blockers. This raises questions about the possible neurological effects of puberty blockers on children’s psychological, social, sexual and cognitive development. Some of Professor Evans’s references are listed below (Robinson et al 2014, Hough et al 2017 a & b).

The consequences of a pathway of surgical and medical intervention are not merely physical of course. Stephen B Levine wrote in 2018  in the journal of Sex and Marital Therapy ‘Informed consent for transgender patients’ reminds us that risk needs to be identified across three categories – the biological, social and psychological. Four specific risks arise in each category.

Biological risks include loss of reproductive capacity, impaired sexual response, shortened life expectancy, Insistence that biological sex can be changed cannot alter the possibility of sex based illness – such as prostate cancer arising.  Social risks include emotional distancing from family members, and ‘a greatly diminished pool of people who are willing to sustain an intimate and loving relationship’. Significant psychological risks involve deflection of necessary personal development challenges, inauthenticity and demoralisation – when changing your body does not bring about the desired changes to the way you ‘feel’.

Of course, the existence of risk does not mean that one should never embark upon a risky endeavour. It may well be that the benefits outweigh the possible disbenefits to a significant degree and the risk is well worth taking. But that conclusion cannot be reached without clear eyed and dispassionate unpicking of the risks AND benefits.

How can the ‘no debate’ platform and unquestioning acceptance of any child’s expressed wish to ‘transition’  ever reflect the serious ethical duty of medical professionals to be sure their child patient has offered informed consent?

To what extent are adult influences driving children?

Julian Vigo independent scholar, filmmaker and activist who specializes in anthropology, technology, and political philosophy, wrote for Forbes in December 2018 about discussions with Mermaids in 2013 and the concern noted then about what might lie behind adult desires for their chid to ‘transition’ – to help the adult ‘fit in’.

I spoke to Linda at Mermaids, a support group in London formed in 1995 by parents of transgendered children.  She told me that this group supports parents who have children who do not ‘fit in’ with ‘gender roles.’  I ask what she meant exactly by ‘fitting in’ and Linda explains, ‘If you are a little girl who behaves like a boy, you will want to have your hair short, to play with the boys.  Even at play group they will be different…they will be picked on and those are the problems.’  I tell Linda that many little girls will have short hair and play with boys—I was one of those little girls.  She says, ‘I have known a lot of girls in my time and they don’t like rough and tumble..they don’t like playing with boys.  They like to play with dolls, dressing up, playing in the Wendy House, to grow their hair…’  Linda emphasises that it is important that these children ‘fit in,’ a phrase she often repeats in our discussion.  Is this what transitioning for some trans adults is about?  Is this the ‘support’ that parents are receiving in order to understand ‘gender roles’?

Professor Michele Moore makes some similar points and her talk is linked to below.

 

Conclusions

I will never make any apology for raising and discussing these issues. As a disabled child who could not be ‘fixed’ it became clear to me in my teens that I had a choice; to kill myself or to try and live the best life I could in the body I had. I had virtually no support from the adults around me in this process; the 1970s and 1980s, when I grew up, were much less enlightened times than now and I am glad these issues can be more freely raised.

I wish for all the chance to the live their best life and to live it freely, with love and respect from their fellow humans. We should all do what we can to allow this to happen. If we can’t support it, we should step back and keep quiet.

However, we need to tread very carefully when it comes to little children, who are wholly at the mercy of the decisions made on their behalf by the adults caring for them. Any decision which has the consequence of setting their bodies and hence their lives on a particular path is one that must be taken carefully, honestly and in possession of all the facts. It should never be about a way of assuaging the pain or mental distress of any adult.

None of this means it is impossible for a four year old to have clear and decided views about what he or she wants to do with his or her body, or that it would be automatically wrong to act on those views. But it is – by simple matter of that child’s very young age and compromised cognition – highly unlikely that the vast majority of four year olds can make informed decisions about something serious – such as surgery. We need to be very, very careful about the extent to which adult hopes and dreams are pinned on children.

If anyone in the Mermaids organisation cannot read the judgments of Hayden J and feel appropriate remorse for their role in contributing to the significant harm caused to a 4 year old child, they are not fit to receive even 50 pence of public money, let alone £500K.

 

Edit 26th December 3.40pm

I am really grateful for the mostly courteous expressions of interest in this post. In particular, the comments from the parent of a trans child. I agree with her that this was not a case where anyone (so far as I know) was advocating for immediate surgery on a 4 year old. I remain very concerned about what the logical outcome for the child would have been if no one had intervened to disrupt the ‘disdain the penis’ narrative. But I accept that surgery and/or  medication are not usually on the horizon until the child approaches puberty.  I also accept – as did Hayden J – that there are children who will need the kind of support and intervention advocated by Mermaids. But to force ‘transition’ on a child who didn’t want it is as every much a horrible tragedy as it is to deny a child help and support they desperately need. The only way – I think – out and through these difficult and emotional questions is by adherence to facts and rational debate about them.

Second Edit 26th December 5.55pm

A reader comments that it is ‘absurd’ to say that re J highlights anything about Mermaids. I refer to this article in the Guardian which confirms that Mermaids supported the mother in court. I stand by my assertion that the judgment in Re J reveals very worrying things about Mermaids’ operation and assumptions. ‘To the man with a hammer – everything is a nail’.

 

Third Edit 1st January 2019

I have further edited this article to include references to some interesting papers and online talks which I have discovered in conversation with others on line. i remain profoundly grateful for the opportunity to take part in these kind of discussions.

 

Further reading

Articles

Mum of ‘gender non conforming child’ sells fake ‘extra small’ penises for transgender children under five – The Mirror December 2017

Emperor’s new clothes. Gender ideology and rebranding the privileged as the marginalised –  Liberals for Sanity June 2018

No, you don’t have a disorder. You have feelings – Lisa Marchiano July 2018

Those of us in the mental health profession ought to be in the business of helping people to see themselves as having the potential to be well and whole. We should help them understand themselves as resilient, rather than infirm and frail. We ought to help people imagine larger, richer, more complex stories for themselves, rather than simplistic narratives of illness and victimhood.

The Science of Gender: what influences gender development and gender dysphoria – summary of the 2018 European Society for Paediatric Endocrinology (ESPE) Science Symposium on 18-19 October 2018 at The Tavistock and Portman NHS Foundation Trust. By Bob Withers and posted by Miranda Yardley in November 2018

Trans groups under fire for huge rise in child referrals – Andrew Gilligan November 2018

 

Talks

Rene Jax, a male to female transsexual, calls for caution and further research over use of medication for children who express gender dysphoria  – Calfornia Family Council July 2018

Professor Michele Moore speaks in October 2018, discusses her concerns about the lack of debate about the impact on children of a medical and surgical pathway; that gender dysphoria does not reside in the body. Encouraging self identification in children is a tool of adult self interests. She is expert in Inclusive Education and Disability Studies

 

Case law

Gillick v West Norfolk and Wisbech Area Health Authority and another [1986]

Jay v Secretary of State for Justice [2018] EWHC 2620 (Fam) (08 October 2018) and note the evidence of Dr Barrett quoted at para 29 of the judgment:

“Separately, and recently, she reports gender identity problems. Her history, if taken at face value, is reasonably consistent with this diagnosis but the difficulty is that other aspects of that history are rather directly at odds with the documentary records leading me to have doubts about the veracity of her whole history – which would include a reasonably consistent history of gender identity problems. This aspect might be made clearer if a source other than [Ms Jay] could be interviewed …. If collateral collaboration is elicited I would reach an additional diagnosis of some sort of gender identity disorder. Whether the intensity of gender dysphoria caused by that disorder is great enough to merit or require a change of gender role might be explored in the setting of a gender identity clinic; it might be sufficiently intense in a prison but not so outside one and in civilian life, for example. If collateral corroboration is not convincingly elicited I would have grave doubts and wonder whether [Ms Jay]’s somewhat dependent personality had caused her to unwisely latch onto a change of gender role as a seemingly universal solution to both why her life had gone wrong and how it might be rectified.”

What does ‘Best Interests’ mean in the Mental Capacity Act 2005?

 

How do we make decisions for people who can’t make them for themselves?

There are very many reasons why a person may lack capacity. This can be a condition present from birth or as a result of an accident. It can be enduring or it can be intermittent. All these circumstances will inform a decision about what is in the best interests of the person lacking capacity at any given time.

How to make decisions for people who lack capacity is particularly difficult when a person has an enduring lack of capacity and there is little evidence about their wishes and feelings. Theses cases raise the starkest issues around what ‘best interests’ should really mean. This is particularly so when we examine the extent to which ‘substituted judgment’ still forms part of the decision making process.

 

Different ways we can make decisions for people or ourselves

Advance decisions – MCA section 24 – 26

It is possible to set out your wishes when you still have capacity with regard to refusing medical treatment.  But this is a very limited field; it only applies to a decision made in advance to refuse treatment; it does not give you the right to demand any other form of care.

Lasting power of attorney – MCA section 9

If you are over 18 and have capacity at that time, you can choose someone who will make decisions for you, should you lose capacity in the future. This person then has authority to make decisions about your personal welfare and property affairs. taking into account your wishes but making a decision using the best interests framework.

You can also make a written statement about your wishes and feelings which would be considered as part of the best interests decision making process but which would not have any legal authority.

 

Decision making before the MCA

Parens patriae and substituted judgment

Until 1959  the ancient doctrine of ‘parens patriae’ set out the legal basis for making decision on behalf of incapacitated adults. It means ‘the parent of the country’ and conferred on the Crown a power to protect the person and property of those who could not protect themselves.  The exercise of this power transferred from the Crown to the chancery courts in the seventeenth century.  It is not easy to discern how this power was exercised in early cases, but it is clear that the focus was meant to be on protecting the person who lacked capacity.

The Mental Health Act of 1959 abolished this jurisdiction. Unfortunately the new Act provided a framework for decisions to be made about financial matters, but did not set out how to deal with welfare issues, such as decisions about medical treatment.

The House of Lords in Re F [1990] 2 AC 1 decided that the way round this was to invoke the inherent jurisdiction and the doctrine of necessity to make declarations regarding the lawfulness of proposed medical interventions for those who lack capacity.  However, that does not deal with the cases where ‘necessity’ is not the issue but a choice needs to be made between competing welfare aims.

Substituted judgment

‘Substituted judgment’ is one way of making decisions, by trying to make the choice that the person would have made, if they had the capacity to do so.

The test of ‘substituted judgment’ was part of the parens patriae jurisdiction with regard to financial/property issues, a landmark decision being that of Re Hinde in 1816 where Lord Eldon argued that the Court ‘looking at what it is likely the Lunatic himself would do, if he were in a capacity to act, will make some provision out of the estate for those persons.’

However, the obvious criticism of this method of decision-making is the enormous difficulty in trying to make a decision that a person ‘would have made’ if that person has never been competent and never expressed a view. Not only can that lead to contorted ‘reasoning’ but there is a clear danger is that it is instead the views of the decision maker, which will come to the fore, such views being formed by all the prejudice and assumptions of that person.  This is particularly dangerous if the decision maker has some personal investment in any particular outcome.

 

The view of the Law Commission

The Law Commission Consultation Paper No. 119 (1991) (Mentally Incapacitated Adults and Decision-Making: An Overview) considered the ‘best interests’ and the ‘substituted judgment’ tests as two conceptually distinct standards. Not only is there is a different historical development and scope of application between the two tests, but also the ‘best interests test is ‘more paternalistic and restrictive’ and emphasizing what the decision maker thinks is objectively best for the patient.

The Law Commission preferred the ‘best interests test’ due to the difficulties inherent in substituted judgement but recognized that the ‘distinction between the two tests may be little more than a matter of language.’

 

Example from case law – ‘best interests’ before the MCA

Re A (medical treatment: male sterilisation) [2000] 1 FLR 259.

This case involved a 28 man who had Down’s syndrome and a severe impairment of his intelligence.  He was cared for by his mother who made an application under the inherent jurisdiction hat he should have a vasectomy despite his inability to consent to the operation. This was in case he had a sexual relationship that would result in the birth of a child, as he could not understand the implications of this. A was sexually aware and the mother was conscious that given her age and health she would not be able to provide him with care for much longer and he would have to go into institutional care. She was worried about what would happen once he was no longer subject to her close supervision.

The court at first instance refused to permit this so the mother appealed saying that a vasectomy should be seen as ‘fool proof’ contraception and that was of benefit to A which outweighed the risks of a surgical procedure.

The Court of Appeal carried out a close analysis of the ‘best interests’ of A and considered that:

  • The concept of best interests is not limited to best medical interests, but includes medical, emotional and all other welfare issues.
  • A’s freedom would not be more restricted if he did retain his fertility, he would still be under close supervision.
  • A vasectomy would not reduce the risk that A could be exploited or contact a STI.
  • The issue of the impact of pregnancy upon his mother or the woman who was pregnant was not a relevant consideration in terms of his best interests, as his relationship with his mother would continue. The birth of a child or anyone disapproving of his conduct was not going to impinge on him.
  • The operation would cause him risk and discomfort.

Thorpe LJ set out guidance on how to evaluate what is in an individual’s best interests. He said that it is ‘akin to a welfare appraisal’ and that the judge should draw up a balance sheet. The balance sheet should consider the benefits and disbenefits of the decision and the likelihood of each occurring.

Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet.  The first entry should be of any factor or factors of actual benefit.  In the present case the instance would be the acquisition of foolproof contraception.  Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant

I suggest this approach only because Sumner J’s judgment in the present case seems to me to concentrate too much on the evaluation of risks of happenings, some of which seem to me at best hypothetical. A risk is no more than a possibility of loss and should have no more emphasis in the exercise than the evaluation of the possibility of gain.

This case is a useful demonstration of the dangers inherent in ‘substituted judgment’ as it was clear from the mother’s evidence that she was also motivated by a profound distaste for the idea that anyone should have sex without being married. Issues around disabled people enjoying their sexuality are often very difficult for many people to contemplate and it is not hard to see how those inherent prejudices could infect any attempt by a decision maker to work out what was in the best interests of the particular individual.

 

Mental Capacity Act 2005 approach to best interests

Therefore, those drafting the Mental Capacity Act plainly rejected the notion of ‘substituted judgment’ and took on board Thorpe LJ’s hope of a statutory checklist.

The Act requires decision-makers to consider the views and preferences of the person who lacks capacity. However, section 4(6)(a) of the Act makes it clear that it is only one of the factors to be taken into account because some people have simply never been in the position to express any views about the issue to be decided.

The Act is designed to direct the focus away from the personal views of the decision maker and direct attention to both the current and future interests of the person who lacks capacity.

Section 1 of the MCA sets out that an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests and before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”

The Act does not attempt a definition of best interests – which is certainly impossible given the infinitely variable circumstances, which can arise. Instead, section 4 sets out a framework for making a decision in someone’s best interests.

You should consider ‘all relevant circumstances’ which is defined under section 4(11) as those which the person making the determination is aware, and which it would be reasonable to regard as relevant.  The statute provides further guidance about what is likely to be a ‘relevant circumstance’, such as whether it is likely that the person will have capacity at some time and when that time is likely to be.

You must so far as is reasonably practicable permit and encourage the person to participate or improve his ability to participate as fully as possible in the decision making process.

If you are considering life sustaining treatment you must not be motivated by a desire to bring about the person’s death.

You must consider so far as is reasonably ascertainable;

  • The person’s past and present wishes and feelings, in particular whether there is a previous written statement made when he had capacity
  • The person’s beliefs and values that would be likely to influence his decision if he had capacity

The Act is also clear about what is NOT a relevant circumstance. Under section 4 (1) (a) and (b). You cannot make a best interests determination merely on the basis of:

  • The persons age or appearance
  • A condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

Under section 4(7), you must take into account, if practicable and appropriate to consult them, the views of anyone the person identified as someone who ought to be consulted and anyone who is caring for the person or interested in their welfare, which includes anyone with a power of attorney and any deputy appointed by the court.

 

Recent Case Law on Best Interests

The reality is however, that we simply can’t escape an element of substituted judgment in those cases where we have no evidence about the wishes and feelings of the incapacitous person – either because they have never been capable of expressing the same or have never expressed an opinion on the issue in question prior to becoming incapacitous.

In Re X,Y and Z [2014] EWHC 87 (COP) is a neat illustration of how to examine ‘best interests’ when we have little or no idea what P would say about the situation. In this case a mother of three children had suffered a RTA that left her profoundly disabled and with an altered personality. This lead to the children suffering serious emotional harm whilst living in the same household with her and the LA decided that this situation could no longer endure and the children should go into foster care.

All agreed that it would be the best outcome for the children if their current nanny could be that foster carer; all agreed she was doing an excellent job, the children were attached to her and there would be no risk of splitting up the sibling group.

However, the mother’s situation was dire; the money awarded to her for her care after her RTA was running out and she had a normal life expectancy. This was a problem because the nanny was requesting a salary on top of the foster care allowances the LA would pay. Without a salary the nanny would no longer be able to pay into her pension or maintain her own flat which made her prospects on retirement look bleak.

The mother’s deputy thus argued that it was not in the mother’s best interests to secure the services of this nanny, as it would lead to the quicker depletion of her fund.

Baker J considered the case law regarding ‘best interests’ from paragraph 27 of his judgment. He derived the following principles:

  • There is no hierarchy between the various factors that have to be considered. But in some cases there may be a factor of ‘magnetic importance’ in determining the outcome – see the judgement of the then Munby J in Re M ITW v Z and Various Charities [2009] EWCH 2525 (Fam).
  • ‘interests’ is not confined to ‘self interest’ – a court can conclude that it is in the interests of P to act altruistically. See observation of Morgan J in Re G (TJ) [2010] EWCH 3005 (COP).
  • P’s wishes and feelings and the beliefs and values that will be likely to be influence her decision if she had capacity must be considered by the court so far as reasonably ascertainable.  They are not determinative but must be considered as part of the overall best interests analysis.  The weight to be attached to this factor will always be case-specific and fact-specific.
  • In assessing the weight to be attached to P’s wishes and feelings the court must have regard to all the relevant circumstances.

In considering this issue of ‘relevant circumstances’ Baker J set out and relied upon the observations of Munby J in Re M (op cit) at para 35:

the degree of P’s incapacity, for the nearer to the borderline the more weight must be in principle be attached to P’s wishes and feelings….

the strength and consistency of the views being expressed by P;

the possible impact on P of knowledge that her wishes and feelings are not being given effect to

the extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and

crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in her best interests.  

Substituted Judgment – still relevant

Baker J was clear that the test under the 2005 Act was materially different from the test of ‘substituted judgments’ and agreed that the new approach was more akin to the ‘balance sheet’ approach.

But this does not mean that issues of substituted judgment have disappeared from our deliberations.  Baker J referred to how Morgan J traced the evolution of the best interests test in Re G (T) (op cit) by examining the judgments of the Court of Appeal and House of Lords in Airedale NHS Trust v Bland [1993] AC789 (in particular the judgment in the Court of Appeal of Hoffmann LJ) and the report of the Law Commission 231 which proceeded the passing of the 2005 Act.  It was the view of both the Law Commission and Hoffman LJ in Bland that substituted judgment can be subsumed within the context of best interests’

Baker J cited paragraph 55 of the judgment of Morgan J, where he observed:

The best interests test involves identifying a number of relevant factors. The actual wishes of P can be a relevant factor: s4(6) (a) says so. The beliefs and values which would be likely to influence P’s decision, if he had capacity to make the relevant decision, are a relevant factor: s4(6) (b) says so. The other factors that P would be likely to consider if he had the capacity to consider them, are a relevant factor: s4(6)(c) says so. Accordingly, the balance sheet of factors, which P would draw up, if he had capacity to make the decision, is a relevant factor for the court’s decision. Further, in most cases, the court will be able to determine what decision it is likely that P would have made, if he had capacity. In such a case, in my judgment, P’s balance sheet of factors and P’s likely decision can be taken into account by the court. This involves an element of substituted judgment being taken into account, together with anything else, which is relevant. However, it is absolutely clear that the ultimate test for the court is the test of best interests and not the test of substituted judgment. Nonetheless, the substituted judgment can be relevant and is not excluded from consideration.

 

By applying these considerations, Baker J was able to conclude ‘without hesitation’ that it was in the mother’s best interests to authorize payment to the nanny to take on the care of the children.

He observed at paragraph 45:

I accept that the court has power under the 2005 Act to approve payments for the maintenance or other benefit of members of P’s family, notwithstanding the absence of an express provision to that effect in the Act, provided such payments are in P’s best interests. Such payments might be called altruistic, but are more characterised as falling within the broad meaning of the concept of “best interests” under the Act. Where a parent loses mental capacity at a time when she is still responsible for her children, those responsibilities are part of her “interests” which have to be addressed by those making decisions on her behalf, and payments to meet the reasonable needs of those children are manifestly capable of being described as in her “best interests” on all the circumstances, applying the criteria in the Act….

Plainly P’s wishes and feelings are of great importance in determining whether in these circumstances it would be in her best interests for payments to be made. She has expressed the wish that her funds should be used in support of the children. It is said that, in expressing that view, she does not appreciate the fact that her own care needs are now costing more than her income. In my judgment, however, were she to have a full understanding of the shortfall, she would nevertheless support the payment of sums to S to safeguard the future of her children, preferring to make savings in the costs of meeting her own care needs. The new arrangement will significantly reduce the sums being paid towards the children out of her estate, and as a result the deputy and those responsible for managing her affairs will have greater flexibility in adjusting arrangements to enable her to make savings. I find that P’s wishes and feelings are, in the words of Munby J Re M, ITW v Z at paragraph 35, “responsible and pragmatically capable of sensible implementation in the circumstances” and “can properly be accommodated within the court’s overall assessment of what is in her best interests.

Conclusions

This can appear to be a convoluted and artificial exercise. For many inacpacitous people who have never expressed a view about their circumstances, and never will, it seems likely that what we will end up doing is simply imposing what we think is the best thing for them.

It’s clear that we get limited guidance from the case law as each case turns on its own facts – for example, some cases are clear that the ‘best interests’ of P cannot extend to considering what is best for anyone else, whereas in other cases the impacts of the decision on others becomes a factor of key importance.

But the value of the Act is that it forces us into a framework where we really have to stop and think about what we are doing and check our own assumptions.  As Lady Hale made clear in Cheshire West – this is simply about ensuring that disabled people have the same respect for their human rights as everyone else.  The scales will always tip back and forth between potentially excessive paternalism and a wish to protect to recognition of the right of us all to make unwise decisions.  In an imperfect world all we can do is recognize the requirements – and the limitations  – of the task in front of us.

Otherwise we end up in a situation such as Somerset v MK (Depravation of Liberty : Best Interests Decisions : Conduct of a Local Authority) [2014] EWCOP B25, where HHJ Marston commented at para 74 of his judgment:

The overall summing up by the senior social work manager was: “There has been a corporate failure and a failure of those on the ground to realise that they are out of their depth, most worrying was that they looked more sure about what they were doing than they ought, it’s going to be difficult to re-establish that trust (with the family) if its rebuilt it is going to be with good practice.” Mr Justice Ryder (as he then was) in a leading authority on FII cautioned social workers in child care cases not to decide what the picture was and then make the facts fit the picture, it seems to me that is what happened here.

Further Reading

An interesting case where it was found that a woman had a right to refuse treatment as her life had ‘lost its sparkle’ – see Kings College Hospital NHS Foundation Trust v C and Another [2015] and this discussion of the case by Lucy Series