Abstract
This chapter surveys decisions of the English courts in relation to best interests determinations for incapacitous adults and children. The courts never state explicitly what account of human thriving is being assumed. This is problematic. Autonomy, or the potential for future autonomy, is plainly a very important criterion. So is the capacity to experience some pleasures and not to be subject to some vicissitudes. The relationship between acting virtuously, or at least being virtuous, is rarely acknowledged. The model of the self assumed by the law is essentially an atomistic one.
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Notes
- 1.
At 93.
- 2.
It was comprehensively reviewed by Munby J in R (Burke) v General Medical Council [2004] EWHC 1879 (Admin) cp the Court of Appeal decision in the same case: [2005] EWCA Civ 1003.
- 3.
(1990) 67 DLR (4th) 321, 336.
- 4.
[1997] 2 FLR 426, at 432.
- 5.
[1985] AC 871, at 904.
- 6.
[1994] 1 AC 212; see too Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39.
- 7.
Offences Against the Person Act 1861s. 47.
- 8.
Offences Against the Person Act 1861s. 20.
- 9.
Lords Mustill and Slynn dissenting.
- 10.
[2018] EWCA Crim 560. For discussion see http://blog.practicalethics.ox.ac.uk/2018/04/tongue-splitting-nipple-excision-and-ear-removal-why-prosecute-the-operator-but-not-the-customer/#more-13304.
- 11.
Genesis 2:18.
- 12.
On Liberty.
- 13.
Cited Baroness Hale, ‘Dignity’, Journal of Social Welfare and Family Law (2009): 31; 101.
- 14.
ECHR Article 2.
- 15.
ECHR Article 3.
- 16.
ECHR Article 4.
- 17.
ECHR Article 5.
- 18.
ECHR Article 6.
- 19.
ECHR Article 7.
- 20.
ECHR Article 8.
- 21.
ECHR Article 9.
- 22.
ECHR Article 10.
- 23.
ECHR Article 11.
- 24.
ECHR Article 12.
- 25.
ECHR Article 14.
- 26.
The law in relation to children’s capacity to make decisions is beyond the scope of this book, but see Gillick and Act.
- 27.
Mental Capacity Act 2005s. 3(1).
- 28.
s. 1(5).
- 29.
See s. 4: for discussion, see below.
- 30.
Aintree University Hospitals v James * at [39].
- 31.
[2000] 1 FLR 549.
- 32.
[2001] Fam 15.
- 33.
s. 1(5).
- 34.
At 887.
- 35.
See the discussion below.
- 36.
See s. 4.
- 37.
See, e.g., Thorpe LJ in Re A (Male Sterilisation) supra, at 560: ‘There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal…Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit…..Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant…Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.’
- 38.
[1993] AC 789 at 826.
- 39.
See, for instance, Aintree University Hospitals v James [2013] UKSC 67, per Lady Hale at [35]. For an example of the principle’s application, see St. George’s Healthcare NHS Trust v P [2015] COPLR 561.
- 40.
ibid.
- 41.
s. 4(4).
- 42.
s. 4(6).
- 43.
See sections 24, 25 and 26. But note the tension between s 4(6)(a) (which requires past and present wishes to be ‘consider[ed]’, and s. 26, which purports to make past wishes, in the form of an advance directive, binding in some circumstances.
- 44.
See Aintree University Hospitals v James, ibid, per Lady Hale at [24].
- 45.
A good example of the exercise of subsituted judgement is in the judgment of Charles J in Re Briggs [2017] 4 WLR 37 at [111]: ‘Members of the family told me that in their view Mr. Briggs would regard his present situation as horrible and one that he would not wish to continue. Included within the reasons given are that a life in which he did not have the ability to communicate with his wife and child is not one that he would be wishing to have…’ This evidence weighed heavily with the judge in making his best interests determination.
- 46.
‘…through his eyes’: another endorsement of substituted judgment.
- 47.
Ibid, 813.
- 48.
ibid at 829.
- 49.
ibid at 899.
- 50.
[2017] 4 WLR 37.
- 51.
[99]. See too Re N [2016] COPLR 88; and Sheffield Teaching Hospitals NHS Foundation Trust v TH [2014] EWCOP 4.
- 52.
[2012] EWCA Civ 1233.
- 53.
ibid, at [40].
- 54.
[2018] 1 WLR 465.
- 55.
[2017] EWCOP 22.
- 56.
[2017] COPLR 143.
- 57.
[2013] COPLR 558.
- 58.
[2016] COPLR 88.
- 59.
[2011] EWHC 2443 (Fam).
- 60.
[2015] COPLR 561.
- 61.
ibid, at [24], following para 3.31 of the Law Commission in their Report on Mental Incapacity (1995, Law Com No 231). The 2005 Act is substantially based on this Report.
- 62.
Supra, at [56].
- 63.
See Bland, supra.
- 64.
ibid, at [51].
- 65.
Re W, ibid.
- 66.
[2007] EWHC 1744.
- 67.
- 68.
[2005] EWCA Civ 1181, [85].
- 69.
[2013] UKSC 67, [39].
- 70.
An NHS Foundation Trust v AB, CD and EF [2005] 1 FLR 21, 23.
- 71.
[2017] EWHC 3619 (Fam), [28], [54].
- 72.
Original emphasis.
- 73.
[1991] Fam 33.
- 74.
[2018] EWHC 127 (Fam), [109].
- 75.
An NHS Trust v MB & Anor [2006] EWHC 507 (Fam).
- 76.
[2018] EWCA 984 (Civ).
- 77.
At [1].
- 78.
Para 22.
- 79.
[2006] EWHC 507 (Fam).
- 80.
[67].
- 81.
[2012] EWHC 2188 (Fam).
- 82.
[2017] EWHC 3619 (Fam).
- 83.
[1997] 1 WLR 242.
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Foster, C., Herring, J. (2018). What Does the Law Say About Human Thriving?. In: Human Thriving and the Law. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-030-01135-2_1
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