Doing your best: applying the ‘best interests’ test under the MCA 2005

 In Wills

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Mental Capacity Act 2005

Since October 2007, the Court of Protection has had to determine whether to authorise the making of a statutory Will or a lifetime gift on behalf of persons lacking capacity on the basis of the ‘best interests’ test under the Mental Capacity Act 2005 (“MCA 2005”). As the test enters its fifth year, have the Courts finally determined how it should be applied?

The Pre-Mental Capacity Act 2005 approach

Prior to the MCA 2005, when dealing with the property of a patient, the Courts tried to put themselves in the place of the patient in order to decide what that patient would have done. It was assumed that the patient would be having a brief lucid interval during which they would remember the past and understand their prognosis: Re D(J) [1982] Ch 237. Where there was no information about the patient’s past views, the Court would assume that he was a “normal decent person”: Re C [1992] 1 FLR 51. In contrast, when considering a patient’s personal welfare, a ‘best interests’ test was adopted, which required a balance sheet approach, considering each benefit and dis-benefit of any particular course of action and then drawing a conclusion as to the correct way to proceed: see, e.g, Re A [2000] 1 FLR 549.

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The current test

s 1(5) of the MCA 2005 expressly orders that any decisions under this Act must be made in the best interests of the patient. No definition is given of ‘best interests’ but the notes accompanying the Bill made it clear that it was not intended to be a ‘substituted judgment’ test. The steps which must be taken in reaching the decision are set out in s 4. All relevant circumstances must be considered (s 4(2)). This includes, but is not limited to:

  • the patient’s past and present wishes and feelings (including any relevant written statement made by him when he had capacity)
  • the beliefs and values that would be likely to influence his decision and the other factors that he would be likely to consider if he had capacity (s 4 (6))
  • the patient must be encouraged to participate in the decision making process as far as is possible (s 4(3))
  • the views of his carer and others may be relevant (s 4(7)).

The Court’s interpretation

The view of the Courts as to how this ‘best interests’ test should be applied is somewhat divided. On the one hand, Lewison and Munby JJ (as they then were, in Re P [2009] EWHC 163 (Ch) and Re M [2009] EWHC 2525 (Fam) respectively) are both very firmly of the view that the ‘best interests’ test has replaced the ‘substituted judgement’ test and that, whilst the views of the patient are to be considered, they are “only one part of the balance” (per Lewison J, at [41]). Munby J, went so far as to comment that the weight to be placed on such views may be affected by the extent to which they are rational and the degree of the patient’s capacity. This means that the pre-October 2007 decisions are no longer directly relevant. (This approach has been followed in Re D [2010] EWHC 2159 (Ch); R(C) v A Local Authority [2011] EWHC 1539 (Admin) (a case relating to the liberty of a vulnerable adult)).

In contrast, in Re S [2010] 1 WLR 1082 (a case involving the appointment of a deputy) and Re G(TJ) [2010] EWHC 3005 (COP), whilst accepting that the ultimate question for the Court is one of best interests, the judges did their best to frame the test so that, on the facts, it was ultimately a matter only of substituted judgement. HHJ Marshall QC in Re S instituted a presumption that the patient’s views should be followed (where they are not irrational or impractical to implement) which could only be departed from on the basis of a “strong and cogent” justification (at [58]). Lewison J had attempted to reconcile this view in Re P by agreeing with its “broad thrust”, but finding that the importance of giving effect to the patient’s wishes had been “slightly overstated” and that there was no presumption. Nevertheless, Morgan J effectively took the presumption approach in Re G(TJ), finding that in an appropriate case, a Court could conclude that it is in the best interests of P for the Court “to give effect to the wishes which P would have formed on the relevant point, if he had capacity” (at [37]). His view was that the ‘substituted judgement’ test had been subsumed into the ‘best interests’ test. On that basis, where there were no countervailing factors, a Court should try to give effect to the wishes or supposed wishes of the patient.


In my view, the approach of Lewison and Munby JJ must be correct. There will be very few cases in which there will not be any countervailing factors (e.g. the views of others) to be weighed in the balance. It may be that those factors point in the same direction as the patient’s views, but the Court should go through the full balance sheet process, rather than simply reverting to the former test. Indeed, Parliament has made it clear that the legislative intention was to ensure that decisions of the Court were more than just a substituted judgement. In accordance with this intention, the Act makes it clear that all relevant circumstances should be considered and, whilst the views of the patient is one of those circumstances, the legislative language does not justify giving it almost total dominance. Further, attempting to imagine oneself into the position of the patient is an artificial exercise which potentially leaves too much room for the imposition of the judge’s own views.

That said, given the current judicial split in approach, anyone with a case before the Court of Protection should, where possible, take special care to arm themselves with evidence of the patient’s known wishes and values in order to support their position, just in case their judge is intent in skewing the test.

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