Abstract
The balance sheet is commonly used as a deliberative approach to decide best interests in Court of Protection cases in England and Wales, since Thorpe LJ in Re A (Male Sterilisation) described the balance sheet as a tool to enable judges and best interests decision-makers to quantify, compare, and calculate the different options at play. Recent judgments have critically reflected on the substance and practical function of the balance sheet approach, highlighting the practical stakes of its implicit conceptual assumptions and normative commitments. Using parallel debates in proportionality, we show that the balance sheet imports problematic assumptions of commensurability and aggregation, which can both overdetermine the outcome of best interests decisions and obfuscate the actual process of judicial deliberation. This means that the decision-making of judges and best interests assessors more generally could fail to properly reflect the nature of values at stake, as well as the skills of practical judgment needed to compare such values with sensitivity and nuance. The article argues that critical reflection of the balance sheet makes vital space for a more contextualised, substantive mode of deliberation which emphasises skills of qualitative evaluation towards enhancing conditions of articulation around the range of values involved in best interests decision-making.
Highlights
Where a person is deemed to lack capacity to make a decision on her own behalf, the balance sheet is commonly used as a deliberative approach to decide what should be done, in her best interests, in Court of Protection cases in England and Wales.[1]
If the balance sheet is applied uncritically, best interests decision makers who use this device—including judges, barristers, solicitors, and social and health care practitioners—risk taking up implicit assumptions and commitments which could overdetermine the outcome of their best interests decisions, or which poorly reflect the actual process of deliberation
The balance sheet has an intuitive attraction to many decision makers under the Mental Capacity Act 2005 (MCA), and not just judges themselves
Summary
Where a person is deemed to lack capacity to make a decision on her own behalf, the balance sheet is commonly used as a deliberative approach to decide what should be done, in her best interests, in Court of Protection cases in England and Wales.[1]. If the balance sheet is applied uncritically, best interests decision makers who use this device—including judges, barristers, solicitors, and social and health care practitioners—risk taking up implicit assumptions and commitments which could overdetermine the outcome of their best interests decisions, or which poorly reflect the actual process of deliberation These commitments—and by default, the decision-making of best interests assessors— would fail to properly reflect the nature of values and goods at stake, as well as the appropriate mode of deliberation or skills of practical judgment needed to compare these with sensitivity and nuance. Our focus on the balance sheet in judicial best interests decision-making functions as an instructive gateway that helps contextualise and problematise its unreflective use in applications of section 4 of the MCA, in cases where its inclusion in submissions to judges help frame and inform their deliberations, as well as the many situations that do not even make it to the courts. 11 For further critical discussion of the best interests standard, both in relation to mental capacity law and as it relates to children, see M Dunn and others, ‘Constructing and Reconstructing ‘best interests’: An Interpretative Examination of Substitute Decision-making under the Mental Capacity Act 2005’ (2007) 29 J Social Welfare & Family L117; J Coggon, ‘Mental Capacity Law, Autonomy, and Best Interests: An Argument for Conceptual and Practical Clarity in the Court of Protection’ (2016) 24 MLR 396; M Donnelly, ‘Best Interests, Patient Participation and the Mental Capacity Act 2005’ (2009) 17 MLR 1; M Donnelly, ‘Best Interests in the Mental Capacity Act: Time to Say Goodbye?’ 24 MLR 318; LM Kopelman, ‘The Best Interests Standard for Incompetent or Incapacitated Persons of all Ages’ (2007) 35 J L, Med & Ethics 187; D Degrazia, ‘Value Theory and the Best Interests Standard’ (1995) 9 Bioethics 50
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