When a vulnerable person cannot make decisions for themselves, most people would agree that decisions about care, living arrangements and finances should prioritise their best interests. That is the approach for the UK Court of Protection since the Mental Capacity Act 2005 made clear that the yard stick was best interests, not doing what the person in question would have done (called “substituted judgment”). Although the Supreme Court has made clear that substituted judgment is critical to best interests, I have my concerns about how this all works in practice.
The concept of ‘best interests’ originates from the family law arena, where it works well. Society has certain norms as to what is acceptable for a child, for example that they must be kept physically safe, in education and so far as possible living with family. As a trusts lawyer I have acted for children in situations where we could really see the immediate and practical impact of taking a best interests approach. In one instance we were asked to help a disabled girl to access funds from her trust to pay for certain family holidays. We were able to argue that it was very much in her best interests to have those positive experiences.
However, the concept can be far more nuanced and complicated in cases involving adults. This is partly because they have likely spent decades making decisions for themselves. For example, how do you properly handle medical decisions for someone who has been a Jehovah’s Witness for 70+ years? There are also difficulties around finances and property, not least because other parties are likely to have strong views on how these should be handled and what is ‘best’. We have even had rulings from the Court of Protection that it may not be in a vulnerable person’s best interests to save tax.
It is not hard to see how the concept of ‘best interests’ starts to drift and becomes untethered from an objective anchor. So often what is in one family member’s eyes clearly in someone’s best interests is an anathema to another family member. We frequently see situations, for example, where families and carers disagree over how someone should be looked after. One dispute centred on whether a very vulnerable elderly person should be fed through their nose or mouth. Both adult children had their parent’s best interests at heart, but their opposing views were hard to separate from their sibling rivalry.
We have been involved with cases where family members, or even members of staff argue about which country a vulnerable person should live in. Perhaps the most extreme example is where family members were arguing shortly before their parent’s death; worryingly some of the family were keen for there to be a move to a jurisdiction that had highly favourable (i.e. low) death duties.
While there is a framework that the Court uses to analyse decisions, it is very much open to a subjective overlay. Experts will often be brought in to assess a situation but if they are new to the family’s situation it is often difficult for them to be able to properly assess or understand the relationships and dynamics within the family that may be having an impact on the situation in question. Practically who controls care staff on a day to day basis – either in terms of reporting lines or paying the bills – can have a significant impact both in the views they express but also what they are prepared to tell experts. Experience has taught us that, often people who have little to no contact with the person in question will present themselves as being very close.
What it adds up to is a danger of an overly paternalistic process that is at risk of not taking individuals’ wishes and feelings into account nearly enough; or perhaps more accurately not taking sufficient time to establish what the person’s wishes and feelings are and what they may actually mean in practice. Often it is the latter process, of thinking practically and asking “what does this look like on the ground”, that gets overlooked.
This is not to say that substituted judgment is free from problems. It cannot be possible to know for certain what someone would do, particularly where circumstances have changed for themselves, their family or their property.
And of course the test itself is open to abuse. We have sadly seen many situations where a relative or carer has helped themselves to a vulnerable person’s money, and have sought to justify this to the police and the judiciary by asserting that the vulnerable person wished them to have it.
In my experience, the best outcomes can occur when all parties go and see the individual in question. This may help to understand what they want, and also build a consensus as to the way ahead. Even in very litigious and contentious situations, if you get everyone in a room and point out that we all want what’s best for the vulnerable person, that can build bridges and focus minds. Not always but sometimes that common starting point can be enough to build consensus.
With this approach there is far more room for discourse and nuance. It is not as streamlined as applying a blanket test and declaring that ‘best interests’ have been served. But in practice it will likely serve vulnerable people’s interests better.