Post on 20-Jan-2023
ORI GIN AL ARTICLE
Best Interests in the MCA 2005—What can HealthcareLaw Learn from Family Law?
Shazia Choudhry
Published online: 2 August 2008
� Springer Science+Business Media, LLC 2008
Abstract The ‘best interests’ standard is a highly seductive standard in English
law. Not only does it appear to be fairly uncontroversial but it also presents as the
most sensible, objective and ‘fair’ method of dealing with decision making on
behalf of those who are perceived to be the most vulnerable within society. This
article aims to provide a critical appraisal of how the standard has been applied
within family law, to outline how the standard is to be applied within healthcare law
and, finally, to assess the relevance of the family law experience of the best interests
standard to the operation of the standards as envisaged by the MCA.
Keywords Best interests � Mental Capacity Act 2005 � Children Act 1989 �Welfare principle � Human Rights Act 1998 � Incapacitated patients � Children
Introduction
The ‘best interests’ standard is a highly seductive standard in English law. Not only
does it appear to be fairly uncontroversial but it also presents as the most sensible,
objective and ‘fair’ method of dealing with decision making on behalf of those who
are perceived to be the most vulnerable within society. It is of no surprise, therefore,
that it has, for the past 18 years, formed part of the bedrock of legislation
concerning decisions made on behalf of children via the Children Act 1989 (the CA)
and, has now, been incorporated as part of the new Mental Capacity Act 2005 (the
MCA), as the standard to be applied to decisions concerning incapacitated patients
and which came into force in October 2007. This article aims to provide a critical
appraisal of how the standard has been applied within family law, to outline how the
standard is to be applied within healthcare law and, finally, to assess the relevance
S. Choudhry (&)
Queen Mary College, University of London, Mile End Road, London E14NS, UK
e-mail: s.choudhry@qmul.ac.uk
123
Health Care Anal (2008) 16:240–251
DOI 10.1007/s10728-008-0084-x
of the family law experience of the best interests standard to the operation of the
standards as envisaged by the MCA.
Best Interests in Family Law
The ‘best interests’ standard in family law is, in reality, exclusively utilised in relation
to decision-making on behalf of children. The main piece of legislation that regulates
such decisions is, as stated above, the CA, however, explicit reference to a ‘best
interests’ standard cannot be found anywhere in the Act and is, instead, largely derived
from the operation of the ‘welfare principle,’ which is contained in s1 (1) of the CA:
When a court determines any question with respect to
(a) the upbringing of a child; or
(b) the administration of a child’s property or the application of any income
arising from it.
The child’s welfare shall be the court’s paramount consideration.
There are two points of particular note with regard to this section. First, that the
welfare of the child is paramount i.e. over and above all other considerations,
including the interests of all other parties, such as the mother and the father. The
‘paramountcy principle’ has thus been interpreted to mean that the welfare of the
child is, in fact, the sole consideration. As a result, it has been held that the interests
of adults and other children are only relevant in so far as they might affect the
welfare of the child in question [6].
Second, there is no definition of ‘welfare’ in the Act but there is a list of factors
which a judge should consider when deciding what is in the child’s welfare. These
factors are set out in s1 (3):
(a) The ascertainable wishes and feelings of the child concerned (considered in the
light of his age and understanding).
(b) His physical, emotional and education needs.
(c) The likely effect on him of any change in his circumstances.
(d) His age, sex, background and any characteristics of his which the court
considers relevant.
(e) Any harm which he has suffered or is at risk of suffering.
(f) How capable each of his parents, and any other person in relation to whom the
court considers the question to be relevant, is of meeting his needs.
(g) The range of powers available to the court under this Act in the proceedings in
question.
‘Best interests’ come into the equation, in the child context, when a court is trying to
resolve a dispute relating to the upbringing of a child. The court will decide the
question on the basis of what is in the child’s best interests. This is often facilitated by
requesting information on a child’s welfare from a child and family reporter1 who will
1 CA 1989 s7 (1).
Health Care Anal (2008) 16:240–251 241
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normally come from a social work background. The court reporter is independent of
the parties and will prepare a report having interviewed each party, including, if
possible, the child. The report should consider the issues in dispute; the options
available and recommend a course of action. However, although the court does not
have to follow the recommendations of a court reporter [13] it is generally expected to
obtain oral evidence [9] from the reporter if this is likely and provide an explanation as
to why the recommendations have not been followed. The role of the court reporter is
thus integral to the whole decision making process. Ultimately, the question will be
decided by application of s1 (1) and s1 (3) but it is clear that the court reporter service is
of vital importance to the court in performing its role. What is generally in the ‘best
interests’ of children is therefore regarded as being, generally, in their welfare.
Mention should also be made of the way in which the court decides how much
weight should be accorded to the ‘wishes and feelings of the child concerned’ as
expressed by s1 (3). Experts such as child psychologists invariably inform the
principles followed with respect to this issue. Sturge and Glaser [18], for example,
have suggested that the wishes of children under the age of six should be regarded as
undistinguishable from the wishes of the main carer, and the wishes of children over
ten should carry considerable weight, while those between six and ten are at an
intermediate state. Generally speaking, the courts will thus consider whether the
child is ‘competent’2 in deciding whether those views should be taken into account
[14] and in Re H (Residence Order: Child’s Application for Leave) [11] it was said
that ‘full and generous’ weight should be given to a mature child’s wishes. There
are, however, exceptions to this general rule, the most notable being when such
decisions involve medical treatment of the child [15].
So far, so ‘fair,’ however, as implied by the introduction to this article the ‘best
interests’ standard as applied by the welfare principle has not been without criticism
over the 18 years that the CA has been in force [3]. The most significant of these
criticisms will now be examined:
Uncertainty and Unpredictability
Mnookin [8] has argued that considerable uncertainty arises from the great many
unknowns concerning welfare. Herring [5] develops this argument further by
arguing that it is sometimes impossible to obtain the ‘real’ facts because often there
is only the conflicting evidence of the parties involved. Further, even if the facts are
established it is impossible to predict how well the parties will be able to care for the
child. These uncertainties lead, in turn, to a wide discretion given to the judge who
may use instinct or ‘common sense’ as a basis for their decision. The result is that
this will make it harder to predict outcomes and thus to provide any real consistency
in decision-making.
2 So-called ‘Gillick competent’ children. Derived from Gillick v West Norfolk and Wisbech Area HealthAu thority [4] and meaning a child who ‘‘reaches a sufficient understanding and intelligence capable of
making up his own mind on the matter requiring decision’’ (per Lord Scarman at 186).
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Hijacking
The author has argued elsewhere [1] that because the welfare principle does not
allow for parties to argue their interests separately from that of the child the danger
remains that one party can elevate or promote their own interests under the guise of
the best interests of the child. By doing so he/she might achieve an outcome, which
would not in the long run promote the child’s welfare. An example of such a case
would arise where the resident parent was implacably opposed to contact taking
place with the other parent. In some cases the reasons for the hostility would be well
founded, as in instances where there had previously been domestic violence [10].
But in others the hostility might be founded only on unrelenting extreme personal
dislike of the other parent. In Re J (A Minor) (Contact) [12] a 10-year-olds’
experience of contact had been characterised by conflict and distress to such an
extent that he had refused to see his father. At first instance, the trial judge
concluded that the mother’s clear, implacable hostility to ordering contact was
causing so much distress to the son as to render contact with his father against his
best interests. The Court of Appeal implicitly approved the judge’s balancing of the
harm caused to the child by refusal of contact against the harm caused by allowing
contact. The courts have, however, made it plain that the implacable hostility of one
parent does not inevitably prevent them from making contact orders, and there are a
number of cases where contact has indeed been ordered [13].
Incompatibility with the Human Rights Act 1998 and the Principle of Equality
of Arms
The approach of the European Court of Human Rights towards disputes concerning
children will be to seek to strike a fair balance between each family member’s
Article 8 rights,3 in the light of the individual facts of the case, although the welfare
of the child will be a primary consideration. This approach ensures that no one ‘rule’
(that of the best interests of the child) prevails automatically and that if the best
interests of the child do prevail it is only after a detailed consideration of all the
parties’ rights and interests on a presumptively equal footing has taken place.
However, in direct contrast, it is clear that the welfare principle as set out in the CA
does not allow for this process to be followed and may give rise to issues of
incompatibility with Article 8 and, thereby, a potential breach of the courts duties
under the HRA.4 This is because once a court starts from the premise that the
3 Article 8, gives a right to respect for ‘‘private and family life’’ subject to the exceptions set out in
paragraph 2. Art 8(2). To be justified, any interference with Article 8 rights must be prescribed by law,
pursue a legitimate aim of a kind set out in the Article; and be necessary and proportionate.4 Section 6 of the HRA 1998 makes it unlawful for public authorities such as local authorities, the police
and the courts to act in a way which is incompatible with the Convention rights and, significantly, this will
include a failure to act. Further s3 provides that legislation must, so far as is possible, be read and given
effect in a way which is compatible with the Convention rights. If this is not possible then a declaration of
incompatibility may be made under s4. Thus it is argued that the paramountcy principle as it is currently
conceived and applied requires reinterpretation under s3 (1) HRA in accordance with the interpretative
obligation under that section and also with the courts’ duty under s6 (1), taking account of the relevant
Strasbourg jurisprudence under s2.
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parents’ interests need be considered only in so far as they coincide with those of the
child, examination of the parents’ rights is rendered a largely redundant exercise
within a family law process that will always elevate one party’s interests—the
child’s—in all circumstances over the others [1]. As a result, Eekelaar [3] has
argued that the welfare principle encourages ‘‘a laziness and unwillingness to pay
proper attention to all the interests that are at stake in these decisions.’’
The ‘Welfare Science’ Industry
It is clear that the courts are very much influenced by the research findings of welfare
science professions such as psychiatry and psychology and that this has given rise to a
perception that a whole industry has built around this. As such, it is argued that the
‘welfare science industry’ has been placed within a position of considerable power
with respect to legal decision-making. Although court adherence to such opinion may
undoubtedly be of benefit to the parties involved in the legal process it can also present
a number of hidden dangers. First, any benefits gained from such research will always
be vulnerable to change over time, as the industry has to respond to changes in
approach, which will result from further and more up to date research findings.
Further, any such changes can take a great deal of time to filter down to the legal
system. Second, Smart [16] has argued that the growing influence of psychiatry and
psychology on the determination of what was best in terms of ‘child welfare’ since the
CA came into force has had a detrimental effect upon the role of women as mother.
She argues that the role of the mother has come to be regarded as crucial by the welfare
sciences, which in itself has given a new ‘power’ to women. However, these new
power claims also present new dangers in terms of the issue of equality because they
are not rights-based but are formulated around the uniqueness of motherhood and the
‘natural’ bond between mother and child. As a result mothers are not heard unless they
speak in the ‘language of welfare’5 [17]. Mothers are thus forced to silence their own
legitimate interests in favour of those who speak of welfare. Finally, we should not
underestimate the role that the welfare science industry has played with respect to the
incorporation of the HRA and the resultant application of a rights-based discourse in
family law. The preoccupation of family law with welfare science and the subsequent
embedding of a predominantly consequentialist-based discourse for the past two
decades has, as the author has argued elsewhere [1], meant that considerable
resistance has built up to engaging with a rights discourse on any level.
Application of the Principle is Only Tested in the Context of Court Proceedings
The welfare principle and, thus, the best interests standard is only applied when a
dispute arises and is brought before the court. However, we also know that decisions
5 The central and determining metaphors in family law have become the welfare of the child and the
importance of the father as an instrument of welfare and as an individual who earns legal standing. The
mother seems to lose her standing...it is not clear to me that there is any longer a language available for
mothers to voice their subject position in law. There is an erasure taking place which is based on a form of
silencing which arises out of giving the legitimate modes of expression to those who speak of
welfare...and those who speak of the significance of fatherhood.
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are regularly made on behalf of a child that may, in fact, not be in his/her best
interests because they are reached on an agreed basis, for example, the transfer of
residence from one parent to another. Such decisions have, at present, no way of
being tested by the standard unless the matter is brought before the courts either
privately or, if the circumstances are such, via local authority intervention.
Best Interests under the MCA 2005
Prior to the MCA 2005 the principle of acting or making a decision in the best
interests of a person who lacks capacity to make the decision in question was a well-
established principle in the common law. The principle is now set out in s1 (5):
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
As a result, the best interests standard forms the basis for all court decisions made
and actions carried out on behalf of people who lack capacity to make those
decisions for themselves. The only exceptions to this principle are those who are
involved in research and where a valid advance decision is in existence. Further, s4
of the Act sets out a checklist of factors which should be followed in order to
determine what is in the best interests of a person who lacks capacity.
Section 4 states:
(1) In determining for the purposes of this Act what is in a person’s best interests,
the person making the determination must not make it merely on the basis of
(a) the person’s age or appearance, or
(b) 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.
(2) The person making the determination must consider all the relevant
circumstances and, in particular, take the following steps.
(3) He must consider
(a) whether it is likely that the person will at some time have capacity in
relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to
participate, or to improve his ability to participate, as fully as possible in any
act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment he must not, in
considering whether the treatment is in the best interests of the person
concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable
(a) the person’s past and present wishes and feelings (and, in particular, any
relevant written statement made by him when he had capacity),
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(b) the beliefs and values that would be likely to influence his decision if he
had capacity, and
(c) the other factors that he would be likely to consider if he were able to do
so.
(7) He must take into account, if it is practicable and appropriate to consult them,
the views of
(a) anyone named by the person as someone to be consulted on the matter in
question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person’s best interests and, in particular, as to the
matters mentioned in subsection (6).
In addition, s1 (6) makes further important provision concerning the propor-
tionality of measures/decisions taken on behalf of the incapacitated adult:
Before the act, is done, or decision is made, regard must be had to whether the
purpose for which it is needed can be effectively achieved in a way that is less
restrictive of the person’s rights and freedom of action.
Parallels
A strong parallel may be drawn between that of the child (even where Gillick
competent) and that of the incapacitated patient in two ways. First, and most
obvious, decisions for both groups will be made on their behalf in accordance with
what is in their best interests. However, where children are concerned what is in
their best interests will be the paramount consideration for the court. No such
hierarchy exists with respect to incapacitated patients under the MCA.
Second, a very similar spectrum of capacity exists for both groups. In respect
of children, at one end of the spectrum we have the very young who cannot
decide for themselves what is in their best interests. In the middle there are those
children of an intermediate age who may have their wishes taken into account
depending upon the circumstances. At the other end of the spectrum are Gillick
competent children who are generally able to decide matters concerning their
welfare for themselves. However, the reality for the latter group of children is
that their ability to make decisions on their own behalf is very context driven and
can be limited, particularly if the decision concerns medical treatment. For
incapacitated patients, as set out in the Code of Practice issued with the MCA,
there are those patients at one end of the spectrum who suffer from conditions
that mean that they will be permanently incapable of making decisions on their
own behalf, for example, someone who suffers from severe disabilities, which
render them unable to communicate in any way. In the middle/intermediate area,
are those for whom the loss of capacity is partial, temporary or will change over
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time.6 In such cases capacity should be assessed on the ability to make a specific
decision at the time it needs to be made7 and consideration should also be given
to whether the decision can be deferred to a time when a person may regain the
capacity to make the decision for themselves.8 In that sense the ability to make
decisions will be very dependent upon the circumstances. At the other end of the
spectrum are those who satisfy the capacity test set out in s2 (1) and thus they
can be likened to Gillick competent children under the CA. These people will
clearly be able to make decisions on their own behalf. The important difference
here is that, unlike with Gillick competent children context makes no difference
at all, the sole matter for consideration under the MCA is whether or not the
person has capacity.9
Parallels aside, an important difference also exists between the two legislative
schemes in terms of who will have the most influence on the Court on the question
of what is in the best interests of the child or the incapacitated person. According to
the MCA, in the event of a dispute, the Court of Protection will decide what is in the
best interests of the incapacitated patient with reference to the opinion of the
decision maker.10 According to the CA, in the event of a dispute, the court will
decide what is in the best interests of the child with reference to the opinion of those
holding parental responsibility and/or caring for the child and the court reporter.
Thus, whilst the courts under the CA are routinely facilitated in their role by an
objective and independent reporting service, in contrast, no such service exists for
the use of the Court of Protection under the MCA.11 As a result, although parties
may each instruct expert evidence the court will still in the end, under the MCA,
conduct a straightforward balancing of the evidence before it without the benefit of
a truly independent reporting service.
A Reassessment of the Critique
Having outlined the two legislative schemes and their operation it is now possible to
make an assessment of how relevant the criticisms of the best interests standard in
family law may be to the operation of the standard under the MCA.
6 At paragraph 4.5.7 Code of Practice at paragraph 4.4.8 Code of Practice at paragraph 5.25.9 Supported by s1 (4), which states that a person is not to be treated as unable to make a decision merely
because he makes an unwise decision.10 This function can be performed by a number of people depending upon the circumstances and will
include, the carer, healthcare staff, paid carers and those acting under a Lasting Power of Attorney. Note,
that in the medical context the decision maker judgment is subject to the Bolan test. See the Code of
Practice paragraphs 5.8–5.12 for further guidance on this point.11 Although the parties may seek expert evidence in the event of disputes amongst the professionals
involved in the matter, particularly where the dispute relates to medical treatment.
Health Care Anal (2008) 16:240–251 247
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Uncertainty and Unpredictability
We have seen that in the family law context the ‘vagueness’ and fact driven nature
of what is meant by best interests in any given case has led to a perception of
unpredictability and uncertainty. Further, the guidance provided by the welfare
checklist contained in s1 (4) of the Act has done little to alleviate these concerns. As
such, these criticisms could equally be levelled at the operation of the best interests
standard as envisaged by the MCA. Cases under the MCA are equally likely to be
very fact driven, equally likely to hear conflicting evidence from all parties involved
in a dispute and, in this sense, equally unlikely to uncover the ‘truth’ on behalf of an
incapacitated person. As a result, wide discretion will also inevitably be given to the
judge. However, this very uncertainty and inconsistency may, it has been argued,
illustrate the best interests standard’s greatest weakness and its greatest strength [2].
In other words, it is the very uncertainty of the standard that can allow the courts
both under the CA and the MCA to respond in a flexible manner to the individual
demands of a case.
Hijacking
The danger of the best interests standard being ‘hijacked’ by other interests appears
to be less likely under the MCA. This is largely due to the difference in the
checklists of factors. If we compare the welfare checklist under the CA checklist
with the best interests checklist under the MCA we can immediately see that under
the CA, the checklist is drafted entirely from the point of view of the child which, to
a certain extent, forces parents and carers to argue their own interests under the
guise of the child’s best interests. However, the MCA checklist, importantly, does
include a requirement to take into account and consult with anyone involved in
caring for the person or is interested in his or her welfare in deciding what is in the
best interests of him/her. By acknowledging and including the views of such parties
in this manner the MCA allows for greater transparency with respect to their
interests and, thereby, reduces the potential for the hijacking of the standard.
Incompatible with the HRA and the Principle of Equality of Arms
The inherent incompatibility of the paramountcy principle under the CA with the
principles of the HRA, is clearly not applicable to the MCA as no such hierarchy of
interests exists. Further the s4 checklist appears to allow for family members/carers
to have their potential HRA claims taken into account on a seemingly equal footing
with the incapacitated patient.
The ‘Welfare Science’ Industry
The concerns that welfare science poses for the role of women in particular would
seem to be more relevant within the family law context than in the healthcare
context as any disputes over decisions do not quite have the same implications for
248 Health Care Anal (2008) 16:240–251
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women in general. In addition, it is submitted that the concerns that centre on the
dominance of the welfare sciences within the legal process may be mitigated
somewhat by the acknowledgement of and adherence to a rights-based reasoning
both in the MCA and the Code of Practice.
Application of the Principle is Only Tested in the Context of Court Proceedings
We can see that supervision of the best interests principle under the MCA will also
mainly occur within the context of court proceedings and that decisions may be
made in relation to an incapacitated person that are ‘agreed’ between the parties
(and therefore remain outside of the Court of Protection) but which may still fail to
satisfy the best interests standard. However, there is one important difference. It is
far more likely that there will be external professional involvement with an
incapacitated adult than is likely with the day-to-day care of the average child from
either local authority care, charitable involvement or privately funded help. Such
involvement can, in itself, act as a further check of the best interests standard by
triggering the various procedures referred to in the Code of Practice which exist to
ensure that all decisions relating to such people are checked against the principles of
the MCA, even where there is no apparent dispute or application before the Court of
Protection.
Concluding Thoughts
In summary, it would seem that although a number of parallels can be drawn
between the operation of the best interests standard within family law and
healthcare law, it is also apparent that most of the dangers created by the operation
of the standard in family law will not necessarily be of equal application. This is
due, in large part, to a number of features specific to the MCA: the lack of a
paramountcy standard, a recognition of the interests of other parties concerns within
the decision making process, the provision made for rights-based reasoning and
adherence to the duties imposed by the HRA and, finally, the health care context of
such decision making which in itself allows for further triggers to compliance with
the principles contained in the MCA. However, it is submitted that there are two
areas, which could cause some concern. First the lack of a primacy standard with
respect to the interests of incapacitated patients. We have seen that the CA
prioritises the interests of children as the paramount concern in proceedings.
Children, it was argued, are inherently vulnerable and are thus unable to argue their
own interests on an equal footing with adults. There was also evidence to suggest
that prior to the CA, and the imposition of paramountcy, parents and carers in
disputes concerning their upbringing often marginalised the interests of children.
Paramountcy would, it was thought, redress the balance. Thus, although there is
clear disagreement in the family law about how paramountcy has been applied by
the courts, it is, nevertheless, largely accepted that the need remains for the interests
of children to be elevated in some way. Section 3(1) of the United Nations
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Convention on the Rights of the Child, for example, refers to the interests of
children being of ‘primary’ concern, and would more naturally convey the notion of
pre-eminency which, it is submitted, was the original purpose of the welfare
principle as stated by Lord Macdermott in J v C [7] in relation to the words used in
the legislation then in force: ‘first and paramount’:
[these words] must mean more than that the child’s welfare is to be treated as
the top item in a list of items relevant to the matter in question. I think they
connote a process whereby, when all the relevant facts, relationships, claims
and wishes of parents, risks and choices and other circumstances are taken into
account and weighed, the course to be followed will be that which is most in
the interests of the child’s welfare as that term has now to be understood.
It can be seen therefore that the arguments in favour of the elevation of the
interests of children and the use of the process outlined in J v C could also be
applied to decisions concerning incapacitated patients. Moreover, it could also be
argued that there is actually a greater need for such elevation when we consider that
under the MCA, unlike the CA, the interests of other parties can explicitly be taken
into account and, therefore, argued on an equal footing with the interests of the
incapacitated patient. To this end, it is curious that a primacy standard has not been
created to fully protect the interests of the inherently vulnerable incapacitated
person.
The second and final observation relates to the procedures employed by the court
when resolving disputes amongst decision makers and other parties. Under the CA,
we have seen how important the Court Reporter service is to the whole judicial
process not least because of its independence and objective nature. To this end, it is
submitted that the Court of Protection should also be served by a similar reporting
service. However, due to the difference in nature of the cases it is suggested that
such reports should be provided by state funded committees made up of medical
experts and medical ethicists to determine the difficult moral and ethical questions
that cases brought under the MCA will undoubtedly raise. This may, also have the
added consequence of reducing the need for, and costs created in instructing
separate expert opinion.
Acknowledgements I would like to thank John Coggan and the anonymous referees for their helpful
comments when drafting this article.
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