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).

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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.

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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

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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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