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Cite as: [2010] EWHC 3005 (COP), [2010] EWCOP 3005

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Neutral Citation Number: [2010] EWCOP 3005
Case No: 11256218 of 2006

IN THE COURT OF PROTECTION

Royal Courts of Justice
Strand, London, WC2A 2LL
19/11/2010

B e f o r e :

MR JUSTICE MORGAN
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IN THE MATTER OF G (TJ)

____________________

Miss Barbara Rich (instructed by Mullis & Peake LLP) for the Deputy
Mr David Rees (instructed by the Official Solicitor) for the Official Solicitor as litigation friend for G
Mr Michael King (instructed by Harcus Sinclair) for C
Hearing date: 10 November 2010

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Morgan :

    Introduction

  1. On 31 July 2007, I made various orders in relation to two persons who were patients under the Mental Health Act 1983. The two persons concerned were husband and wife, Mr E. T. G (hereafter "Mr G") and Mrs T. J. G (hereafter "Mrs G"). At that time, I gave a detailed judgment explaining the circumstances of the two cases, the legal provisions which applied and my reasons for making the orders. The neutral citation of that judgment is [2007] EWHC 1861 (Ch) and it is reported as In re G (ET) (A Patient) [2008] WTLR 599.
  2. Since 31 July 2007, there have been a number of relevant events. On 1st October 2007, the Mental Capacity Act 2005 (hereafter "the 2005 Act") came into force. The 2005 Act repealed Part VII of the Mental Health Act 1983. On 7 January 2010 Mr G died. Mrs G continues to lack capacity and her position is now governed by the provisions of the 2005 Act. The person who was formerly her the receiver under the Mental Health Act 1983 is now her property and affairs Deputy under the 2005 Act both by virtue of the provisions of the 2005 Act and a confirmatory order of 5 November 2008.
  3. The orders I made on 31 July 2007 concerned both Mr G and Mrs G. Some of those orders have been fully complied with. Other orders have been given effect but questions have now arisen as to the continuing effect of those orders in the period following the death of Mr G and hereafter. Other orders have not been carried to fruition because of difficulties that have been encountered along the way.
  4. On 11 February 2009, that is even before Mr G died, Senior Judge Lush directed that there should be a hearing to consider the progress made in relation to the orders of 31 July 2007. On 16 March 2009, he directed that such a hearing should be listed before me. On 19 April 2010 and 30 June 2010, I gave directions as to the steps which should be taken before any such hearing took place and as to the scope of that hearing.
  5. The review hearing duly took place on 10 November 2010. The Deputy was represented by Miss Barbara Rich. The Official Solicitor, who had been appointed as a litigation friend for Mrs G, was represented by Mr David Rees. Mr and Mrs G's daughter, whom I referred to in my earlier judgment as C, was represented by Mr Michael King. Mr and Mrs G's son, whom I referred to in my earlier judgment as N, did not formally appear at the hearing and was not represented.
  6. Prior to the hearing, there had been considerable disagreement and uncertainty on a large number of matters. Many of those matters, such as the effect of the liquidation (from May 2010) of the family company (which I referred to in my earlier judgment as GCL), and the rights of Mr and Mrs G under a company pension scheme, could not be finally determined in these proceedings in the Court of Protection as they involved persons who were not parties to these proceedings. Further, the parties directly concerned in these proceedings were not agreed on many matters arising in the proceedings themselves.
  7. At a late stage, the parties were able to agree what they wished to happen at this hearing and were able to put before the court a suggested draft order, subject to the court's approval. I am sure that this turn of events owes a great deal to the efforts of the very experienced counsel who have been instructed in this case, supported by their instructing solicitors, and ultimately the good sense of their clients.
  8. At the hearing, I was able to indicate to the parties that I was readily able to approve the greater part of the draft order. In view of the fact that there were no issues raised by the parties as to those parts of the draft order and those parts do not raise any question of general principle, it is not necessary to set out in this judgment what those provisions are, nor the reasons why I am prepared to make these parts of the order in the terms proposed.
  9. However, there was one part of the suggested draft order which seemed to me to involve a question of general principle. In summary, the draft order contained terms directing the Deputy to make payments from Mrs G's funds to her adult daughter, C, by way of maintenance of C. The parties agreed that I could only make an order in those terms if I was satisfied in accordance with the 2005 Act that such an order was in the best interests of Mrs G. Although the parties were agreed between themselves that I had power to make the order, and no one proposed to make submissions to the effect that I should not make the order, I felt that I would benefit from a detailed investigation of the matter and I invited counsel to assist me with their submissions as to why this part of the proposed order was in the best interests of Mrs G, within the meaning of the 2005 Act. Counsel were able to offer considerable assistance on that score and I am now able to reach my conclusion, although I acknowledge that I have not had the benefit of adversarial argument on the point.
  10. In my judgment, the matters debated in the course of argument are of wider general interest such that I should express my reasons in a little detail. The hearing was in private but with the agreement of the parties, I will give this judgment in open court and I will express myself in terms which do not identify the individuals involved.
  11. The judgment and orders of 31 July 2007

  12. I will begin my consideration of the question whether I should direct the Deputy to make payments to C, during the lifetime of Mrs G, by referring to the earlier judgment I gave on 31 July 2007.
  13. As I have explained, my earlier judgment dealt with the position of both Mr and Mrs G. On that occasion I exercised the powers conferred by sections 95 and 96 of the Mental Health Act 1983. I directed the making of statutory wills for both Mr and Mrs G, pursuant to section 96(1)(e) of the 1983 Act. Those wills were subsequently made. I directed that lifetime gifts should be made in favour of C, pursuant to section 96(1)(d) of the 1983 Act. The lifetime gifts in favour of C involved the advancement of substantial capital sums for various purposes and also the provision of continuing maintenance for C. Finally, so far as relevant for present purposes, I directed that a lifetime gift should be made in favour of N, again pursuant to section 96(1)(d) of the 1983 Act.
  14. In my earlier judgment, I identified the principles which I should apply to the matters then before me. I referred to the decision in Re D (J) [1982] Ch 237 for a statement of the principles which I should apply. As is well known, that case directed the court, for the purposes of exercising its powers under sections 95 and 96 of the 1983 Act, to assume that the actual patient was having a brief lucid interval, prior to a certain relapse into incapacity, and during that lucid interval the patient would make a decision on the relevant question. The court would then give effect to the decision which it held that the patient himself, acting reasonably, would have made in that way. In the language which has since become current, this is an example of the court making "a substituted judgment", that is making the decision which the court finds that the patient, acting reasonably, himself would have made.
  15. In my earlier judgment, I considered the decision which Mr G and, separately, Mrs G would have made in relation to the gift of substantial capital sums, in the lifetime of Mr and Mrs G, to C. I also considered the same questions in relation to maintenance of C by Mr and Mrs G. I held that Mr and Mrs G would, in their lifetime, have made the gift of substantial capital sums to C. I gave effect to that decision by directing the receiver for Mr and Mrs G to make those gifts. I also held that Mr and Mrs G would have decided to make maintenance payments to C. I gave effect to that decision in paragraphs 4 and 6 of the order which I made.
  16. By paragraphs 4(1)(b) and 4(2) of the order of 31 July 2007, I directed the receiver to pay the ground rent and service charge due in respect of the London flat in which C was to reside (which was to be owned 50% by C, 25% by Mr G and 25% by Mrs G) and to incur such other expenditure as was necessary to insure, repair and maintain that flat. I directed that these payments were to be borne equally by Mr and Mrs G. By paragraphs 6(1)(a) and 6(2) of the order of 31 July 2010, I directed the receiver to pay a fixed monthly sum to C and that the payments were to be borne equally by Mr and Mrs G. The relevant parts of paragraphs 4 and 6 of my earlier order were expressed to be "until further order".
  17. The parties were agreed as to the effect of the coming into force of the 2005 Act and, separately, the effect of the death of Mr G, on the relevant parts of the orders in paragraphs 4 and 6 of my earlier order.
  18. It was agreed that the coming into force of the 2005 Act (on 1 October 2007) produced the following consequences. The receiver for Mr G and the receiver for Mrs G (being the same person) became the Deputy for Mr G and for Mrs G: see 2005 Act, schedule 5, paragraph 1(2). Further, that appointment as Deputy was subject to the provision in the 2005 Act, schedule 5, paragraph 1(7) that on the death of Mr G, the appointment as the Deputy of Mr G ceased. I agree that these are the relevant consequences of those matters. Indeed, speaking generally, where a Deputy is appointed in relation to P and P then dies, the powers of the Deputy cease. The Deputy does not continue as the Deputy of the now deceased person. This is in accordance with earlier decisions on the legislation in this area which preceded the 2005 Act: see In re Bennett [1913] 2 Ch 318, In re Wheater [1928] 1 Ch 223 and In re Davey [1981] 1 WLR 164 at 172. I was shown a confirmatory order dated 5 November 2008 appointing the former receiver as the property and affairs Deputy for Mrs G. I assume that there was a similar order in relation to Mr G. I do not think that the terms of the order affect the above conclusion.
  19. I next need to consider the way in which the relevant parts of paragraphs 4 and 6 of my earlier order operate in view of the death of Mr G. Counsel are agreed that the position in relation to the relevant part of paragraph 4 of the order is that the order continues to apply but to the Deputy for Mrs G only and that the result is that the Deputy for Mrs G is directed to pay one half of the sums referred to in paragraph 4(1)(b). Counsel are similarly agreed that the position in relation to the relevant part of paragraph 6 of the order is that the order continues to apply but to the Deputy for Mrs G only and that the result is that the Deputy for Mrs G is directed to pay one half of the sum referred to in paragraph 6(1)(a). In view of the other submissions of the parties as to how I should approach matters, it does not matter for present purposes whether counsel are right on their approach to the interpretation of the relevant parts of paragraphs 4 and 6 and I will therefore assume that counsel are right about that matter. On this basis, the current position is that the Deputy for Mrs G remains subject to a direction that he pay one half of the relevant sums to C.
  20. In these circumstances, counsel for C says that, on this review of the earlier orders, I should direct the Deputy for Mrs G to pay the full amount (and not just half) of the sums referred to in paragraphs 4(1)(b) and 6(1)(a) of the earlier order. He says that I can, and I should, give that direction under the relevant provisions of the 2005 Act. If I were to hold that I did not have the power under the 2005 Act to make such a direction, a question might arise as to what I should do to the existing order which, in the events which have happened, directs the Deputy for Mrs G to pay one half of the relevant sums to C. I plainly have power to vary my earlier order but a question might arise as to whether I should exercise that power. Should I leave that direction to have continuing effect or should I discharge that direction on the grounds that I do not now have power to give such a direction under the 2005 Act? Because my ultimate decision, for the reasons which I will proceed to give, is that I can, and I should, make the order requested by C, I will not discuss this possibility further.
  21. For the sake of completeness, I ought to refer to the fact that the statutory will which was made on behalf of Mr G and which took effect on his death contained a provision (at clause 2) which directed the trustees of the will to give effect, amongst other things, to the directions in paragraphs 4(1)(b) and 6(1)(a) of my earlier order. There was a potential dispute as to the meaning of clause 2. There was also a potential dispute as to how clause 2 affected the liability to pay inheritance tax on the estate of Mr G. Those potential difficulties have been wholly removed by reason of a Deed of Variation executed by C and the executors of Mr G's will, prior to the hearing before me, pursuant to section 142 of the Inheritance Tax Act 1984, by which deed C unconditionally gave up any benefit she might have had in these (and other) respects under clause 2 of the will.
  22. Mrs G's financial position

  23. Before turning to the issue of principle as to how the court should approach the question as to the best interests of Mrs G, I will deal with the financial position of Mrs G.
  24. All counsel agreed that, on the facts of this case, before there could be any possibility of the court directing the Deputy for Mrs G to make maintenance payments to C, the court would need to be satisfied that the payments to C would come out of funds which were surplus to the funds which the Deputy for Mrs G would properly wish to have available to spend on Mrs G herself for the remainder of her days. I agree that on the facts of this case, that is the right approach.
  25. Miss Rich, counsel for the Deputy, took me with care through the evidence as to the capital position and the income and expenditure position of Mrs G. The position is not without its complications and Miss Rich addressed me on the basis of making certain assumptions, which might turn out to be too negative, in relation to certain matters which are in the course of being further investigated or which are in the course of being worked through. I agree that it is appropriate in this case to be cautious in making assessments in these respects as to what the future might bring and I also agree that the Deputy's approach has been sufficiently cautious. On the basis of that approach to the evidence, I am satisfied that the payments which I am asked to direct in favour of C will come out of funds which are surplus to Mrs G's own proper requirements for the remainder of her days.
  26. Based on the evidence, I can make the following general comment. The earlier order which I made was based on the capital position and the income and expenditure position of Mr and Mrs G. Pursuant to Mr G's will, and a deed of appointment and advancement to be made by the executors of that will, which will be effective for the purposes of section 144 of the Inheritance Tax Act 1984, Mr G's estate will pass to Mrs G and there will be only modest inheritance tax payable (by reason of lifetime gifts made by Mr G). Further, as Mr G has died, it is no longer necessary to have funds available to provide for his future care and well being. Although the figures in play are in several respects not the same as the figures I used when making my earlier decision to direct maintenance payments in favour of C, it is true in a broad sense to say that if the capital available to Mr and Mrs G when I made my earlier order allowed the court to make that order, then the capital available to Mrs G today also allows the court to make the order in favour of C which is now sought.
  27. The application of the Mental Capacity Act 2005

  28. I can now turn to the statutory provisions, contained in the 2005 Act, which define my jurisdiction for present purposes. For the purposes of the 2005 Act, I am satisfied that, applying sections 1, 2 and 3 of that Act, Mrs G is unable to make a decision in relation to any matter which is now relevant and she lacks capacity in those respects.
  29. By reason of section 1(5) of the 2005 Act, a decision made by the court under the 2005 Act must be in the best interests of Mrs G. The 2005 Act does not define "best interests". Section 4 of the 2005 Act is headed "best interests" and contains a number of relevant provisions as to how the decision maker should determine what is in P's best interests. By section 4(2), the decision maker must consider all the relevant circumstances. By section 4(4), the decision maker must, so far as reasonably practicable, permit and encourage P to participate in the decision affecting him. That does not apply on the facts of this case because (by reason of her condition) it is not reasonably practicable to involve Mrs G in the relevant decision. However, the terms of section 4(4) may have a bearing on what is meant by "best interests" in the 2005 Act.
  30. Section 4(6) of the 2005 Act provides in relation to the decision maker:
  31. "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),
    (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."
  32. By section 4(7) of the 2005 Act, the decision maker must take into account, if it is practicable and appropriate to consult them, the views of certain other persons on certain matters.
  33. By section 16(1)(b), the provisions of section 16 apply if P lacks capacity to relation to a matter concerning his property or affairs. In the present case, Mrs G lacks capacity in relation to the question of maintenance payments to C. Accordingly, under section 16(2), the court may make a decision on that matter on Mrs G's behalf. The court's power to decide is subject to the principles contained in section 1 and the requirement to act in the best interests of Mrs G (as explained in section 4): see section 16(3). By section 16(7), any order of the court made in this way, may be varied or discharged by a subsequent order.
  34. By reason of section 18, the powers of the court under section 16 include a power to make a gift of, or otherwise dispose of, P's property: section 18(1)(b). Those powers also include a power to make a settlement of any of P's property, whether for his benefit or for the benefit of others: section 18(1)(h). The court can make a will on behalf of P: section 18(1)(i).
  35. The issue which needs to be addressed in the present case is: is it in the best interests of Mrs G to make payments to her daughter C?
  36. One response to this question might be that, whilst such payments will be for the benefit of C, the payments will not be, in any real sense, for the benefit of Mrs G. If the word "interests" in the phrase "best interests" refers to the self-interest of Mrs G, it might be asked: what self-interest of Mrs G is advanced by payments to C? If the suggested answer is that such payments will benefit Mrs G and be in her interests because Mrs G will be pleased that the payments are made to her daughter, on the facts of this case, Mrs G will never know that the payments are being made and there will be no reaction, of pleasure or otherwise, to that fact.
  37. The posing of these questions means, in my judgment, that I must understand more thoroughly what is meant by "best interests" in the context of the 2005 Act.
  38. Best interests: the statutory provisions

  39. The phrase "best interests" is not defined. That might suggest that it was intended that the application of the phrase would be responsive to the particular issue which arises and the facts of the individual case.
  40. The context in which issues as to "best interests" arise in the present case concerns the property and affairs of Mrs G, rather than her welfare and healthcare. As I have explained, the court is given power to make a lifetime gift of P's property and to make a lifetime settlement of P's property for the benefit of others: see section 18(1)(b) and (h). The court can also make a will for P: see section 18(1)(i). Further, I note that under section 12, the donee of a lasting power of attorney may make certain gifts and by section 9(4), the authority conferred by a lasting power of attorney is subject to the requirement that the donee acts in the best interests of the donor of the power. These various references to gifts, lifetime and testamentary, and settlements for the benefit of others, suggest to me that the word "interests" in the phrase "best interests" is not confined to matters of self interest or, putting it another way, a court could conclude in an appropriate case that it is in the interests of P for P to act altruistically. It seems unlikely that the legislature thought that the power to make gifts should be confined to gifts which were not altruistic or where the gift would confer a benefit on P (or the donor of the lasting power of attorney) by reason of that person's emotional response to knowing of the gift.
  41. Further help as to what is meant by "best interests" can be derived from section 4(6). Section 4(6)(a) refers to the past and present wishes and feelings of P. That suggests that giving effect to P's actual wishes can be relevant to assessing P's best interests. Section 4(6)(b) refers to the beliefs and values which would be likely to influence P's decision if he had capacity. I regard section 4(6)(b) as considerably widening the matters which fall to be considered. The width of the relevant matters is further extended by section 4(6)(c) which refers to the other factors which P would be likely to consider if he were able to do so.
  42. The provisions of section 4(6)(b) and (c) extend beyond the actual wishes of P. They refer to the matters which P would be likely to consider if he were able to make the relevant decision. P would be likely to consider any relevant beliefs and values and all other relevant factors. Therefore, the matters which the court must consider under these paragraphs of section 4(6) involve the court in drawing up the balance sheet of factors which P would be likely to draw up if he were able to do so. Of course, the ultimate question for the court is: what is in the best interests of P? The court will necessarily draw up its own balance sheet of factors and that may differ from P's notional balance sheet. The court is not obliged to give effect to the decision which P would have arrived at, if he had capacity to make the decision for himself. Indeed, section 4(6) does not expressly require the court to reconstruct the decision which P, acting reasonably or otherwise, would have reached. Nonetheless, if the court considers the balance sheet of factors which would be likely to influence P, if P had capacity, the court is likely to be able to say what decision P would be likely to have reached. The court is not obliged to give effect to the decision which P, acting reasonably, would have made (the test of "substituted judgment") but section 4(6) appears to require the court to consider what P would have decided (or, at least, the balance sheet of factors which P would be likely to have considered). My provisional view is 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.
  43. Before reaching a final view on how the concept of "best interests" is to be understood in the case of a lifetime gift, I will discuss whether I am assisted by a consideration of the law as it stood before the enactment of the 2005 Act and by a consideration of the Law Commission reports which preceded the 2005 Act. I will also consider three important decisions on the meaning of best interests for the purposes of the 2005 Act.
  44. Best interests: the position before the 2005 Act

  45. In considering the legal position before the 2005 Act, I have looked to see how the courts dealt with an application for a lifetime gift to be made by a patient's receiver and also the court's attitude to the desirability of giving effect to the wishes which the patient would have had, if he had capacity.
  46. The history before the Mental Health Act 1959 is described by Cross J in In re L. (W.J.G.) [1966] Ch 135. Before 1926, the judges who exercised the Lord Chancellor's jurisdiction in lunacy could direct certain voluntary payments out of income: see at page 142A C. Later, section 171 of the Law of Property Act 1925 conferred on the court power to direct settlements of the patient's property: see at page 142C 143E.
  47. Under sections 102 and 103 of the Mental Health Act 1959, the Court of Protection could direct gifts or settlements for the benefit of members of the patient's family and others. Similar provisions were enacted in sections 95 and 96 of the Mental Health Act 1983. Indeed, I exercised those powers in the 1983 Act when I directed maintenance payments to C by my earlier order. I have already explained that the court exercised these powers by making a "substituted judgment", that is, by determining what the patient would have decided, acting reasonably, in a lucid interval.
  48. As regards the attitude of the court to the desirability of giving effect to the wishes which the incapacitated person would have formed (although he had not actually formed them) it is helpful to consider a decision which was not itself concerned with the property and affairs of the incapacitated person. That decision is Airedale NHS Trust v Bland [1993] AC 789, which was influential, in the period before the 2005 Act, in identifying a test of "best interests" in relation to the welfare and treatment of an incapacitated person, under the High Court's inherent jurisdiction. That decision raised fundamental questions as to the sanctity of life and the right to self-determination in relation to a person who was in a persistent vegetative state. The overall conclusion was that the court should decide what was to happen by reference to the best interests of the individual concerned. This involved the court in making its decision as to what it considered was in that person's best interests. That process differed from making a substituted judgment, as explained earlier. However, although the question was as to the best interests of the individual, that question permitted the court to have regard to that individual's wishes and, further, to the court's assessment of what the individual's wishes would have been if he had been able to form any. For present purposes, there are relevant passages in the judgments of the Court of Appeal and in some of the speeches in the House of Lords in that case. At [1993] AC 817C G, Butler-Sloss LJ explained the difference between the substituted judgment approach and the best interests approach. She adopted the latter and not the former approach. However, she accepted that when applying the best interests approach, the court could have regard to the views and personality of the individual concerned. At page 829C F, Hoffmann LJ explained that a person could have an interest in those things of which he had no conscious experience. In a significant passage at pages 829 H 830 A, Hoffmann LJ explained that if the individual concerned is not able to form and express his wishes, the court should try its honest best to do what the court thinks the individual would have wanted. It seems to me that Hoffmann LJ was in no doubt that acting in that way was part of the assessment required by the application of the best interests test. He himself made that clear at page 833F where he said that the substituted judgment approach could be subsumed within the concept of best interests. In the House of Lords, Lord Goff of Chieveley at pages 871H 872 E adopted the best interests test and rejected the substituted judgment test but he went on to add that anything relevant to the individual's best interests must be taken into account and if his personality was relevant to the balancing of all the factors, then it could be taken into account. Lord Mustill was not convinced of the utility of any consideration of substituted judgment: see at page 894 E 895 C.
  49. The 2005 Act was enacted following a series of consultation documents and reports by the Law Commission, in particular Law Com No 231. The Law Commission discussed the concept of best interests at paragraphs 3.24 to 3.37 of this report. At paragraph 3.25, the Law Commission discussed the best interests test and the substituted judgment test in a way which allowed the best interests criterion to include a strong element of substituted judgment. The Law Commission explained why the Bill which they recommended had a checklist of factors to be considered when assessing best interests, rather than an attempt at a statutory definition of that phrase. The draft Bill attached to this report contained a provision similar to section 1(5) (see clause 3(1)) and a further provision similar, but not identical, to section 4(6) (see clause 3(2)). At paragraphs 3.30 and 3.31, the Law Commission explained its views as to the relevance to the best interests test of what the patient would have wanted, if he were able to consider the matter. The wishes that could be identified in this way could include altruistic sentiments and concern for others.
  50. In the same report, the Law Commission also discussed their recommendations as to the new law relating to the property and affairs of the patient. It recommended repeal of Part VII of the Mental Health Act 1983 although those provisions were thought to be a helpful starting point for the new provisions. Part VII was nonetheless to be repealed to allow the new provisions as to financial matters to be integrated into the new scheme dealing with personal and healthcare matters. It was thought that this should lead to significant changes in attitude and practice in relation to financial decision making for those lacking capacity. The Law Commission stated in paragraph 8.33 of its report that the references in Part VII of the Mental Health Act 1983 to the benefit of the patient should be replaced by the general best interests test and, because the best interests test was the subject of clause 3(2) (or now section 4(6)), it was not necessary to make specific provision as to the approach to the making of gifts.
  51. Best interests: decisions on the 2005 Act

  52. Since the 2005 Act, there have been three decisions of the Court of Protection to which it is helpful to refer. They are In re S (Protected Persons) [2009] WTLR 315, In re P (Statutory Will) [2010] Ch 33 and In re M [2010] 3 All ER 682.
  53. In re S, at [55] [58], Judge Marshall QC stressed the weight that should be given to the wishes of P and held that respecting the wishes of P was a very significant part of P's best interests. In re P and In re M, Lewison J and Munby J, respectively, agreed with the broad thrust of these remarks. I will later quote those paragraphs as they are set out in the judgment in In re P.
  54. In re P, Lewison J said at [37] [41]:
  55. [37] Fourth, the overarching principle is that any decision made on behalf of P must be made in P's best interests. This is not (necessarily) the same as inquiring what P would have decided if he or she had had capacity. As the explanatory notes to the Mental Capacity Bill explained (para 28):

    'Best interests is not a test of "substituted judgement" (what the person would have wanted), but rather it requires a determination to be made by applying an objective test as to what would be in the person's best interests.'

    [38] I agree. It follows from this, in my judgment, that the guidance given under the Mental Health Acts 1959 and 1983 about the making of settlements or wills can no longer be directly applied to a decision being made under the 2005 Act. I say this for a number of reasons: (i) The 2005 Act does not require the counterfactual assumption that P is not mentally disordered. The facts must be taken as they are. It is not therefore necessary to go through the mental gymnastics of imagining that P has a brief lucid interval and then relapses into his former state. (ii) The goal of the inquiry is not what P 'might be expected' to have done; but what is in P's best interests. This is more akin to the 'balance sheet' approach than to the 'substituted judgment' approach. The code of practice makes this clear in that it points out that the test of best interests was one that was worked out by the courts mainly in decisions relating to the provision of medical care: para 5.1. (iii) The previous guidance was concerned with deciding what P would have wanted if he were not mentally disordered. But the 2005 Act requires the decision-maker to consider P's present wishes and feelings, which ex hypothesi are wishes and feelings entertained by a person who lacks mental capacity in relation to the decision being made on his behalf. (iv) The same structured decision-making process applies to all decisions to be made on P's behalf, whether great or small, whereas the previous guidance was specific to the making of a will, gift or settlement. Moreover, it is a decision-making process which must be followed, not only by the court, but by anyone who takes decisions on P's behalf. (v) In making his decision the decision-maker must consider 'all relevant circumstances'. (vi) The Act expressly directs the decision-maker to take a number of steps before reaching a decision. These include encouraging P to participate in the decision. He must also 'consider' P's past and present wishes, and his beliefs and values and must 'take into account' the views of third parties as to what would be in P's best interests.

    [39] Having gone through these steps, the decision-maker must then form a value judgment of his own giving effect to the paramount statutory instruction that any decision must be made in P's best interests. In my judgment this process is quite different to that which applied under the former Mental Health Acts.

    [40] That is not to say that P's expressed wishes should be lightly overridden. On the contrary, the Act expressly requires them to be considered; and for particular consideration to be given to wishes expressed by P when he had capacity. In In re S (Protected Persons) [2009] WTLR 315, Judge Marshall QC considered the Act in a most impressive and sensitive judgment. She pointed out the stress that the Act lays on the ascertainment of P's wishes and feelings and on involving him in the decision-making process. She concluded, at paras 55-58:

    '55. In my judgment it is the inescapable conclusion from the stress laid on these matters in the Act that the views and wishes of P in regard to decisions made on his behalf are to carry great weight. What, after all, is the point of taking great trouble to ascertain or deduce P's views, and to encourage P to be involved in the decision-making process, unless the objective is to try to achieve the outcome which P wants or prefers, even if he does not have the capacity to achieve it for himself?

    56. The Act does not of course say that P's wishes are to be paramount, nor does it lay down any express presumption in favour of implementing them if they can be ascertained. Indeed the paramount objective is that of P's best interests. However, by giving such prominence to the above matters, the Act does in my judgment recognise that having his views and wishes taken into account and respected is a very significant aspect of P's best interests. Due regard should therefore be paid when doing the weighing exercise of determining what is in P's best interests in all the circumstances of the case.

    57. As to how this will work in practice, in my judgment, where P can and does express a wish or view which is not irrational (in the sense of being a wish which a person of full capacity might reasonably have), is not impracticable as far as its physical implementation is concerned, and is not irresponsible having regard to the extent of P's resources (ie whether a responsible person of full capacity who had such resources might reasonably consider it worth using the necessary resources to implement his wish) then that situation carries great weight, and effectively gives rise to a presumption in favour of implementing those wishes, unless there is some potential sufficiently detrimental effect for P of doing so which outweighs this.

    58. That might be some extraneous consequence, or some other unforeseen, unknown or unappreciated factor. Whether this further consideration actually should justify overriding P's wishes might then be tested by asking whether, had he known of this further consideration, it appears (from what is known of P) that he would have changed his wishes. It might further be tested by asking whether the seriousness of this countervailing factor in terms of detriment to P is such that it must outweigh the detriment to an adult of having one's wishes overruled, and the sense of impotence, and the frustration and anger, which living with that awareness (in so far as P appreciates it) will cause to P. Given the policy of the Act to empower people to make their own decisions wherever possible, justification for overruling P and "saving him from himself" must, in my judgment, be strong and cogent. Otherwise, taking a different course from that which P wishes would be likely to infringe the statutory direction in s [1(6)] of the Act, that one must achieve any desired objective by the route which least restricts P's own rights and freedom of actions.'

    [41] I agree with the broad thrust of this, although I think that Judge Marshall QC may have slightly overstated the importance to be given to P's wishes. First, s 1(6) is not a statutory direction that one 'must achieve' any desired objective by the least restrictive route. Section 1(6) only requires that before a decision is made 'regard must be had' to that question. It is an important question, to be sure, but it is not determinative. The only imperative is that the decision must be made in P's best interests. Second, although P's wishes must be given weight, if, as I think, Parliament has endorsed the 'balance sheet' approach, they are only one part of the balance. I agree that those wishes are to be given great weight, but I would prefer not to speak in terms of presumptions. Third, any attempt to test a decision by reference to what P would hypothetically have done or wanted runs the risk of amounting to a 'substituted judgment' rather than a decision of what would be in P's best interests. But despite this risk, the Act itself requires some hypothesising. The decision-maker must consider the beliefs and values that would be likely to influence P's decision if he had capacity and also the other factors that P would be likely to consider if he were able to do so. This does not, I think, necessarily require those to be given effect. As the Code of Practice issued by the Lord Chancellor on 23 April 2007 explains (para 5.38):

    'In setting out the requirements for working out a person's "best interests", section 4 of the Act puts the person who lacks capacity at the centre of the decision to be made. Even if they cannot make the decision, their wishes and feelings, beliefs and values should be taken fully into account--whether expressed in the past or now. But their wishes and feelings, beliefs and values will not necessarily be the deciding factor in working out their best interests. Any such assessment must consider past and current wishes and feelings, beliefs and values alongside all other factors, but the final decision must be based entirely on what is in the person's best interests.'

  56. In re P, Lewison J added at [44]:
  57. [44] There is one other aspect of the 'best interests' test that I must consider. In deciding what provision should be made in a will to be executed on P's behalf and which, ex hypothesi, will only have effect after he is dead, what are P's best interests? Mr Boyle stressed the principle of adult autonomy; and said that P's best interests would be served simply by giving effect to his wishes. That is, I think, part of the overall picture, and an important one at that. But what will live on after P's death is his memory; and for many people it is in their best interests that they be remembered with affection by their family and as having done 'the right thing' by their will. In my judgment the decision-maker is entitled to take into account, in assessing what is in P's best interests, how he will be remembered after his death.

  58. In re M, Munby J said at [28] [31]:
  59. [28] These provisions were the subject of analysis by Lewison J in Re P [2009] EWHC 163 (Ch), [2009] 2 All ER 1198, [2010] Ch 33, a judgment, if I may say so, of compelling force with which I respectfully agree. As Lewison J said (at [36]), the 2005 Act marks a radical change in the treatment of persons lacking capacity, in particular (para [37]) by enacting the overarching principle that any decision made on behalf of P must be made in P's best interests. Thus it follows, as he says (at [38]), that the guidance given in the cases decided under the Mental Health Acts 1959 and 1983 about the making of settlements or wills can no longer be directly applied to a decision being made under the 2005 Act.

    [29] I would go somewhat further. It seems to me that, not least for all the reasons given by Lewison J, such well known authorities as Re WJGL [1965] 3 All ER 865, [1966] Ch 135, Re JD [1982] 2 All ER 37, [1982] Ch 237, Re C (a patient) [1991] 3 All ER 866 and G v Official Solicitor [2006] EWCA Civ 816, [2006] WTLR 1201, are best consigned to history. The starting point now must be what Lewison J aptly described (at [38]) as the 'structured decision-making process' prescribed by the 2005 Act, a process which requires the decision maker--here the Court of Protection--to take a number of steps before reaching a decision, including, as Lewison J described it, encouraging P to participate in the decision, 'considering' P's past and present wishes, and her beliefs and values, and 'taking into account' the views of third parties as to what would be in P's best interests. And there is, in my judgment, no place in that process for any reference to--any harking back to--judicial decisions under the earlier and very different statutory scheme, decisions which, as Lewison J justly observed, required the judges to perform 'mental gymnastics' and which, as Palmer J equally justly observed in Re Fenwick, Re Charles, Minister for Community Services [2009] NSWSC 530 at para 87, reached the high water mark of artificiality in Re C (a patient).

    [30] As Lewison J said in Re P at [39], and I entirely agree:

    'Having gone through these steps, the decision-maker must then form a value judgment of his own giving effect to the paramount statutory instruction that any decision must be made in P's best interests. In my judgment this process is quite different to that which applied under the former Mental Health Acts.'

    [31] It is, in contrast, a process very familiar to judges in the Family Division, with their long experience of applying structurally somewhat similar schemes such as the statutory schemes under s 1 of the Children Act 1989 and s 1 of the Adoption and Children Act 2002 and, in a financial context, under s 25 of the Matrimonial Causes Act 1973. And a similar approach has, unsurprisingly, been adopted by the judges when exercising the inherent jurisdiction of the Family Division in relation to incapacitated or vulnerable adults: see, for example, Re MM (an adult), A Local Authority v MM [2007] EWHC 2003 (Fam), [2008] 3 FCR 788.

  60. In that case, Munby J added at [32] [33] some valuable comments as to the way in which a court should identify and weigh relevant factors in assessing the overall best interests of the patient. Then at [34] [35], he added:
  61. [34] The weight to be attached to P's wishes and feelings in the context of the 2005 Act was considered by Judge Marshall QC in Re S and S (Protected Persons), C v V [2009] WTLR 315, the relevant passages of which were set out by Lewison J in Re P [2009] 2 All ER 1198 at [40], [2010] Ch 33, and then by Lewison J himself in Re P at [41]. If I may adopt a phrase used by Lewison J, I agree with the broad thrust of what he and Judge Marshall were saying.

    [35] I venture, however, to add the following observations. (i) First, P's wishes and feelings will always be a significant factor to which the court must pay close regard: see Re MM (an adult), A Local Authority v MM [2008] 3 FCR 788 at [121]-[124]. (ii) Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight. One cannot, as it were, attribute any particular a priori weight or importance to P's wishes and feelings; it all depends, it must depend, upon the individual circumstances of the particular case. And even if one is dealing with a particular individual, the weight to be attached to their wishes and feelings must depend upon the particular context; in relation to one topic P's wishes and feelings may carry great weight whilst at the same time carrying much less weight in relation to another topic. Just as the test of incapacity under the 2005 Act is, as under the common law, 'issue specific', so in a similar way the weight to be attached to P's wishes and feelings will likewise be issue specific. (iii) Thirdly, in considering the weight and importance to be attached to P's wishes and feelings the court must of course, and as required by s 4(2) of the 2005 Act, have regard to all the relevant circumstances. In this context the relevant circumstances will include, though I emphasise that they are by no means limited to, such matters as: (a) the degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings: Re MM (an adult), A Local Authority v MM at [124]; (b) the strength and consistency of the views being expressed by P; (c) the possible impact on P of knowledge that her wishes and feelings are not being given effect to: see again Re MM (an adult), A Local Authority v MM at [124]; (d) the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests.

  62. In re M, at [37] [38], Munby J expressly agreed with paragraph [44] of Lewison J's judgment In re P and added that best interests did not cease at the moment of death. He drew attention to what Hoffmann LJ had said on that subject in Airedale NHS Trust v Bland [1993] AC 789 at 829.
  63. The discussion in these three cases is of great help to me in identifying the general approach which I should adopt in the present case. However, those cases did not need to focus upon a matter which is of importance in the present case, namely, whether in the absence of any other competing consideration, a court could decide that it is in the best interests of P to give effect to the wishes which P would have formed (but had not in fact formed) on the relevant topic.
  64. Miss Rich made submissions on the difficulty she said was created by the additional factor mentioned by Lewison J in In re P at [44], namely being remembered for having done the right thing. Another possible difficulty emerged in the course of discussion. I agree that this factor can create difficulties. First, in the case of a completely incapacitated person, the making of the gift or the terms of the will are decided upon by the court and not by P. In such a case, P has not done anything, in that the decision has been made for P and not by P. This point will have less force where P has participated in the decision or where the decision respects P's actual wishes. There can also be a difficulty with the prediction that P, after his death, will be remembered with affection by his family for having done the right thing. Some families do not agree. Some gifts or statutory wills are made as a result of a direction of the Court of Protection where the court has had to prefer some family members to other family members. Some family members will think that the court has done the right thing and some will think that the court has done the wrong thing.
  65. Discussion and conclusions

  66. Having considered this further material as to the meaning of "best interests" in the 2005 Act, I can now summarise (to the extent that it is relevant in this case) my view of what that concept involves. I will then apply that view to the facts of the present case.
  67. The best interests test involves identifying a number of relevant factors. The actual wishes of P can be a relevant factor: section 4(6)(a) says so. The beliefs and values which would be likely to influence P's decision, if he had capacity to make the relevant decision, are a relevant factor: section 4(6)(b) says so. The other factors which P would be likely to consider, if he had the capacity to consider them, are a relevant factor: section 4(6)(c) says so. Accordingly, the balance sheet of factors which P would draw up, if he had capacity to make the decision, is a relevant factor for the court's decision. Further, in most cases the court will be able to determine what decision it is likely that P would have made, if he had capacity. In such a case, in my judgment, P's balance sheet of factors and P's likely decision can be taken into account by the court. This involves an element of substituted judgment being taken into account, together with anything else which is relevant. However, it is absolutely clear that the ultimate test for the court is the test of best interests and not the test of substituted judgment. Nonetheless, the substituted judgment can be relevant and is not excluded from consideration. As Hoffmann LJ said in the Bland case, the substituted judgment can be subsumed within the concept of best interests. That appeared to be the view of the Law Commission also.
  68. Further, the word "interest" in the best interests test does not confine the court to considering the self interest of P. The actual wishes of P, which are altruistic and not in any way, directly or indirectly self-interested, can be a relevant factor. Further, the wishes which P would have formed, if P had capacity, which may be altruistic wishes, can be a relevant factor. It is not necessary to establish that P would have been aware of the fact that P's wishes were carried into effect. Respect for P's wishes, actual or putative, can be a relevant factor even where P has no awareness of, and no reaction to, the fact that such wishes are being respected.
  69. Having described what can be involved in the best interests test in a case like the present, it remains to apply the test in this case. I will take the matters mentioned in section 4 of the 2005 Act, so far as they are relevant, in turn.
  70. As regards the matters referred to in section 4(3) and (4), Mrs G does not have capacity to make the decision in question and she is not likely to have such capacity in the future. Further, she is not able to participate in this decision.
  71. As to section 4(6)(a), Mrs G does not have any present wishes and feelings in relation to this decision. In relation to past wishes, there are some past wishes which are relevant albeit in general rather than specific terms. In the past, Mrs G was aware that Mr G supported C financially from time to time. It may even be possible to say that it was Mrs G's own wish that Mr G should provide that support. Further, Mrs G's will provided for her children, N and C, to inherit her estate after Mr and Mrs G were both dead.
  72. Section 4(6)(b) and section 4(6)(c) refer to the beliefs and values and other factors which would be likely to influence Mrs G or would be likely to be considered by Mrs G. In this case, it is convenient to take the question of beliefs and values and other factors together rather than to try to consider them separately.
  73. In my earlier judgment, based on the substituted judgment test, I held that Mrs G would wish the surplus assets of Mr and Mrs G to be used to an appropriate extent to provide maintenance for C. The situation today is not identical to the situation which I considered in July 2007. However, there are many matters which continue to apply or where the situation is comparable. The assets now available to Mrs G are her own assets and also the assets which formerly belonged to Mr G, which will now pass to Mrs G. There will remain surplus assets after the Deputy has made all proper provision for Mrs G for the remainder of her days. Thus, I hold that Mrs G would be likely, if she had capacity today, to make the same decision as to the maintenance of C as the decision which I concluded Mr and Mrs G would have made in July 2007. Further, if Mrs G had capacity today and was informed that C had received maintenance payments from Mr and Mrs G under the order of 31 July 2007, I think that Mrs G would not have wished to discontinue those payments.
  74. I next ask myself whether there are any other matters to be reflected in the balance sheet of relevant matters. At the hearing, there was reference to the fact that lifetime gifts from Mrs G to C might result in some modest saving of inheritance tax on Mrs G's death, depending on how long Mrs G continued to live after making any relevant lifetime gift. The submissions of Miss Rich and Mr Rees on that point attached comparatively little weight to that consideration. I agree with their approach. The tax saving possibility is a factor in favour of making the gifts in question but the factor has limited weight on the facts of this case having regard to the amount involved and the life expectancy of Mrs G. Nonetheless, this factor does not count against the making of the order which is sought.
  75. For the sake of emphasis, I wish to repeat a matter I referred to separately earlier in this judgment. I have referred to the question whether Mrs G would retain sufficient funds to allow the Deputy to make proper provision for her for the remainder of her days. I also stated that an assessment of this kind must be a cautious one. These are plainly relevant matters. However, these considerations are all fully respected in the order which is sought. Further, any order I made will be subject to the possibility of variation or discharge if it were to come about that these considerations so required in the future.
  76. I have also considered whether I should take into account the possibility that Mrs G might be regarded by C, and by others, during the remainder of Mrs G's life and after her death, as having done "the right thing". I attach no weight to that consideration in this case, principally because Mrs G is not in any way participating in this decision and it seems to me very hard to say that Mrs G is "doing" anything. Further, while C herself will think that the court has done "the right thing", I am less sure as to what N will think about that matter.
  77. Having identified the factors as best I can, it emerges that the principal justification, so far as Mrs G is concerned, for making the order for maintenance payments in favour of C, is that those payments would be what Mrs G would have wanted if she had capacity to make the decision for herself. I recognise that this consideration is essentially a "substituted judgment" for Mrs G. I am also very aware that the test laid down by the 2005 Act is the test of best interests and not of substituted judgment. However, for the reasons which I have tried to set out earlier, the test of best interests does not exclude respect for what would have been the wishes of Mrs G. A substituted judgment can be subsumed into the consideration of best interests. Accordingly, in this case, respect for what would have been Mrs G's wishes will define what is in her best interests, in the absence of any countervailing factors. There are no such countervailing factors here. I therefore conclude that an order which provides for the continuation of maintenance payments to C is in the best interests of Mrs G.
  78. I will order accordingly.


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