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At the limits of best interests

Checklist 2 146x219In a trilogy of judgments, a judge made findings of fact, determined mental incapacity, and made best interests decisions on behalf of a lady in her 60s with cerebral palsy. The Court of Protection team at 39 Essex Chambers reports.

In Newcastle-upon-Tyne City Council v TP and FW [2016] EWCOP 61 (HHJ Moir) a lady in her 60s had lived a very sheltered life with her parents in a large Victorian house in Gosforth until she was around 48 when her mother died. She strongly wanted to return to live with an individual, FW, in respect of whom the statutory authorities had very significant concerns, in particular in respect of the degree of (malign) control that he appeared to exercise over her.

The case is very fact specific but, in deciding that it was not in her best interests to return to FW, it provides an illustration of the overriding of P’s clear wishes and feelings in the name of best interests. In terms of legal principles, the judge referred to, and endorsed, the keynote address of Peter Jackson J, given at the AMHPA conference, ‘Taking Stock, Mental Health and Mental Capacity Reform’, to supplement the MCA best interests checklist:

21 … In this address the learned judge suggests a framework which can be used as a checklist in Court of Protection cases. He sets out:

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“Here is a checklist that might have appeared in section 4 but did not. I have stolen most of it from existing well-tried checklists. It requires a decision maker in personal welfare cases to consider all the relevant circumstances and, in particular, the following:

    • Past and present wishes and feelings;
    • Beliefs and values;
    • Age, background, race, culture and language;
    • Physical, emotional and educational needs;
    • The extent to which they are being met; Relationships with relatives and other significant persons;
    • The promotion of independence;
    • The preservation of dignity;
    • Harm or likelihood of harm;
    • The effect of any change of circumstances;
    • The range of services that are available; and finally, in cases concerning life preserving treatment,
    • The right to life.”

22. It is a useful suggested framework, or aide memoire, as to the relevant circumstances to consider… It is neither an exhaustive nor limiting list, but it is helpful in considering the factors which a person would wish to consider if he was able.

Real enthusiasts might also want to “stress test” the process by which P’s Article 8 rights were protected against the new (and – according to the ECtHR – CRPD compliant) test set down in AM-V v Finland.

This article was written by the Court of Protection team at 39 Essex Chambers.

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