An article that I have co-written with a former student of mine, Michal Friedman, has just (March 2021) appeared in the Journal of Elder Law and Capacity published by the Law Society of Northern Ireland. As the introduction notes:
In order to make a best interests decision, judges of the Court of Protection in England & Wales now regularly talk of standing in the shoes of the individual whose case is before them. At one level, this simply reflects the structure of the Mental Capacity Act 2005 (‘MCA 2005’): the legal fiction is that a judicial decision under s.16(2)(a) MCA 2005 is the decision of the person themselves. In and of itself, this does not suggest anything in terms of the outcome of the process of considering best interests: it would be quite possible to stand in the shoes of the person and to walk in the opposite direction to that which they would have gone. But, perhaps influenced by the UN Convention on the Rights of Persons with Disabilities (UNCRPD), or perhaps seeking to reflect the injunction of Lady Hale in Aintree v James that the purpose of the best interests test is to consider matters from the person’s point of view, it seems that judges are indeed seeking to walk further in P’s shoes. In an article published in 2015, one of the authors of this article, Alex Ruck Keene, reviewed with Cressida Auckland both the history of the statutory best interests test in s.4 MCA 2005 and the caselaw to that point. That article suggested that, in practice, it was possible to discern the emergence of a presumption in favour of following the identified wishes and feelings of the person.
The article picks up where that earlier article left off to analyse whether that presumption was holding good in the cases decided between 2015 and 2020.
The Journal is currently available online for free (as is the previous issue, which also includes an article led on by another former student of mine, on whether three heads are better than one in terms of considering mental capacity).