It is the legislature that decides what behaviour is to be discouraged and what promoted, and crucially, of what such behaviour shall consist. So, in criminal law, Parliament decided first, that theft should be an offence, and secondly, that it would be committed where one person dishonestly appropriated property belonging to another with intention of permanently depriving that other of it. (Theft Act 1968, section 1.) That the subsidiary task of determining the nature and precise bounds of the offence is a job for the legislature, not the judicature is self-evident. It would be absurd, for example, for a court to say, or to be able to say, “We are satisfied that the defendant dishonestly appropriated property belonging to another with the intention of permanently depriving that other of it, but we find him not guilty because there was not present in the case an element that we have decided, for the purposes of this case, must be present if the offence is to be held to have been committed.”
A similar situation may be encountered in other areas of law. So, for example: employment legislation establishes not only that unfair dismissal is unlawful and compensable in damages, but also what it means for dismissal to be unfair; the Mental Health Act sets out what it means to be suffering from mental disorder and then to require detention on that ground, so that, in criminal proceedings, an accused might be committed to psychiatric care; and in the case of a person who is disabled or chronically unwell, and receiving inadequate care, the National Assistance Act provides not only that steps may be taken in his case, but also, and precisely, what those steps are. In each case, the subsidiary task, quite as much as the primary task, is undertaken by the legislature and it would be absurd to suggest that it be imposed instead upon the judicature.
Compare this with the MCA regime, where, as I have said, the obligation of the court is to ensure that any decision for someone it has found to be incapable represents his best interests. (MCA, sections 4 & 16.) This might be thought to correspond to the duty of the criminal adjudicator to decide whether an accused has committed the offence of theft. Unlike the Crown Court or the magistrates’ court, however, the Court of Protection has no subsidiary guidance on which it may rely. Nowhere does the MCA say what ‘best interests’ means. Indeed, the possibility of anything so much as a comprehensive definition is explicitly denied.
The Code of Practice to the MCA says: “The term ‘best interests’ is not actually defined in the Act. This is because so many different types of decisions and actions are covered by the Act, and so many different people and circumstances are affected by it.” (Code, paragraph 5.5.) True, the Code sets out certain factors that must be considered before an incapable person’s best interests are determined. They include the person’s wishes and feelings, and his beliefs and values (MCA, section 4(6)); and the views of anyone named by him to be consulted, or engaged in caring for him or interested in his welfare (ibid, section 4(7)). But these are only some of the things with which a decision-maker will have to concern herself. The MCA says anyone making a decision for a person who lacks the capacity to do so for himself “must consider all the relevant circumstances” (ibid, section 4(2)), and the Code warns, “This checklist is only the starting point: in many cases extra factors will need to be considered.” (Code, paragraph 5.6).
Furthermore, neither the Act nor the Code explains how the various factors should be weighed or how, if one of them appears to conflict with another, that conflict is to be resolved. (What is to be done, for example, where an incapable person’s daughter has views about his care that contradict those of the person’s son?) This lacuna, which seems to have been created deliberately, is unhelpful. It is also curious, for, when considering decisions made on behalf of public bodies, the courts have said that any discretion should be matched with clear guidance as to how it might be exercised. (See, for example, R (Rogers) v Swindon NHS PCT  EWCA Civ 392.)
It might be argued, by analogy with a criminal case, that in best interests proceedings, the court is not, in fact, producing a subsidiary definition for its own use, but that, having found a precedent fact (guilt or, here, that the subject of the proceedings is incapable of making the decision to which those proceedings relate), it has now moved on to consider disposal. Such an argument would diminish my analysis not at all: in criminal proceedings, there is a wealth of guidance on the question of disposal.
A breach of the ECHR?
It is surely arguable that when it makes a decision in best interests proceedings, the Court of Protection does more than merely determine whether a case fulfils criteria for the utilisation of its powers; that it also – and first – determines what those criteria should be. This state-of-affairs is not unique to such proceedings, of course. It was part of the regime that preceded the Mental Capacity Act, according to which orders might be made in the ‘inherent jurisdiction’ of the High Court, and it might be argued still to obtain in proceedings under the Children Act. But this simply reinforces the need to ask a simple question: if the criteria that determine how a case is decided may – in fact must – be determined afresh for the purposes of that case, how can we say with any certainty what they will be? This is more than an inconvenience for lawyers, and for the health care and social care professionals they may represent.
The lack of certainty in our law was one reason the European Court of Human Rights found against the United Kingdom in the Bournewood case. (HL v United Kingdom, Application number 45508/99, Decision of 5 October 2004.) It said that the use of the common law to deprive an incapable person of liberty would breach Article 5 of the ECHR. The common law is, admittedly, more vague than statute law, but that does not mean that because it is a statute, the new Act necessarily passes muster. There is a danger than in trying to provide absolute flexibility in the care of incapable people, the Mental Capacity Act and its somewhat mutable conception of best interests will prove no less certain and, therefore, no more consistent with the requirements of the ECHR.