This post is about mental capacity law. It’s not directly about what the law is or should be, though. It’s about how lawyers, especially judges, use one particular metaphor, and it’s about a danger that metaphor sometimes brings.
The metaphor might be the oldest one in the law. It is the image of the ‘scales of justice’, and the connected idea that it is the judge’s job to ‘balance’ the claims of the competing sides in a dispute. It can be traced back at least to the 4000 year-old Egyptian concept of Maat. It is still a central image of the law of England and Wales, and many other places. The statue of justice on top of the Old Bailey still has a set of scales in her hand.
Sometimes, this central metaphor of the law can be a problem. I’m not saying that it is always or necessarily a problem, just that it can be.This is because the balancing scale is an excellent metaphor for the results of legal reasoning but not always a good metaphor for the content. To show what I mean, I’m going to start in a slightly roundabout fashion.
Kierkegaard, in his pseudonymous works, liked to poke fun at the Hegelians of his time, especially because they thought that their elaborate philosophical systems could answer the important questions of life. Most English judges would, I suspect, instinctively side with Kierkegaard here. One Hegelian concept he criticises, though, has an analogy in law. When facing an apparent contradiction in their system, Hegelians would rely on the concept of ‘mediation’. Kierkegaard, writing as ‘Constantin Constantius’, is scathing about this:
‘It is incredible how much flurry has been made in Hegelian philosophy over mediation and how much foolish talk has enjoyed honour and glory under this rubric …There is no explanation in our age as to how mediation takes place, whether it results from the motion of the two factors and in what sense it is already contained in them, or whether it is something new that is added, and, if so, how.’
–Repetition, III, 189 (Hong Translation)
Kierkegaard is not criticising the idea of resolving contradictions or conflicts. He is criticising the idea that putting the two alternatives side-by-side, saying ‘mediation’, and then presenting an answer is a reasoned resolution.
There is a similar danger with the metaphor of balancing. If a judge carefully examines two alternatives and reasons his way to choosing one of them, then the metaphor is perfectly apt and harmless. If, however, a judge merely lists the factors on either side, waves the word ‘balancing’ around like a magic wand, and then presents a result, then even calling what has occurred ‘legal reasoning’ is probably overgenerous. A similar thing can sometimes be said in ethics, but that is a topic for another day.
Let’s have a look at ‘balancing’ in contemporary mental capacity law. It’s such a central legal metaphor that it crops up a lot, but I want to focus in on one particular use: determining someone’s ‘best interests’.
This isn’t the place for a full introduction; but, in essence, someone lacks capacity to make a particular decision if at least one of the following is true: they don’t understand the information relevant to that decision; they can’t retain the information relevant to that decision; they can’t communicate that decision; they can’t ‘use and weigh’ (see, I told you that the metaphor got everywhere) the information relevant to that decision. If someone lacks capacity to make a decision, then someone else can make that particular decision for them; but they have to do it in the person’s ‘best interests’, not according to whim or (more controversially) according to what the person wants.
The balancing metaphor as a way of deciding someone’s best interests predates the current Mental Capacity Act 2005. In Re A (Medical Treatment: Male Sterilisation)  1 FLR 549 Thorpe LJ said:
‘…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.’
I want to draw attention to two details of the way that the metaphor is used here. First, the talk of ‘loss’ and ‘gain’ evokes the idea of an accountant balancing numbers; so the idea smuggled in is that the balance sheet has some of the precision and certainty of mathematics. As we will see, that idea didn’t last very long. Second, this is not like the Hegelians using ‘mediation’. Balancing in this case is an idea with content, it describes a particular process. Each possible consequence of a choice is given (pseudo-numerical) weight according to how good or bad it will be and how likely or unlikely it is. This may or may not be a good process or a plausible process, but it is not a conceptually empty process.
The Mental Capacity Act 2005 systematised the law, sort of. Section 4 list things that someone making a best interests decision should ‘consider’ and ‘take into account’, including the handy catch-all ‘all the relevant circumstances’. Mr Justice Lewison has said that this is Parliament endorsing the balance sheet approach (at ). I think he is wrong. Nevertheless, Parliament certainly hasn’t ruled out a balance sheet, and lining up the good and bad possible consequences of a decision does seem like a very sensible step.
The problem for the idea that this is an ‘endorsement’ of the older law is that section 4 contains things other than possible consequences that must be considered: for instance, ‘the person’s past and present wishes and feelings’ and the views of ‘anyone engaged in caring for the person’. In these circumstances, it would have been open to the court to have two, tiered, balancing metaphors. The pre-Act balancing of consequences could have been a separate process within the broader balancing of everything listed in section 4. This isn’t what happened. Instead the two tests have been mashed together incoherently. Pre- and post-MCA precedents are run together indiscriminately: see, for instance, this case at [50 – 51].
Why is that important? It means that the same metaphor is now describing a different thing. Before, good or bad, the process involved comparing like with like. On each side of the ledger were consequences, and they were compared for how good or bad and and how likely they were. Now, different types of things are compared. Characteristically, a person’s wishes and feelings are ‘balanced’ against the bad consequence that other people think will occur if they follow them. Indeed, there is now an established process for deciding how much ‘weight’ a person’s wishes will have: ITW v Z  EWCOP 2525 . It’s always nice to have a process, but this one misses the deeper point. A process for comparing some sorts of wishes to other sorts of wishes is not a process for comparing a person’s wishes to some possible consequences.
So, how do you compare a person’s wishes to some possible consequences? Mr Justice Peter Jackson says this is ‘not mechanistic but intuitive’ (at ), and I suspect this is a common reaction. Never mind apples and oranges, judges are being asked to compare apples and the colour purple, or oranges and the concept of irony. And this is why Kierkegaard’s criticism of the Hegelians might be apt. When there is no obvious way to compare the two columns, then the temptation to stack them side by side, say ‘balance’, and present some result, just so long as it doesn’t shock convention, will be strong. This case (at [19-22]) is an example: Mrs J’s wishes are thrown into a general evaluation of consequences, and then a result somehow appears (and the fact that the unanimous opinion of ‘experienced professionals’ prevails is suggestive). There is, to adapt Kierkegaard’s words, ‘no explanation of how [balancing] takes place’.
Even with the horribly difficult job that judges in the Court of Protection have, this is not inevitable. Mr Justice Newton in St George’s v P  EWCOP 42 (at  – ), for instance, slowly and methodically works his way through different factors and concerns in a case about withdrawing treatment from a man in a minimally concious state. This is nothing like the pseudo-mathematical balancing of consequences in Re A, but neither is it an empty process. Although the reasons are particular to that case and to that man, the explanations for the weight given to them are publicly understandable. It is possible to agree with them or disagree with them when you know what they are.
The metaphor of balancing is perfectly appropriate for a case like this, but it describes the result better than the process of legal reasoning. The process is nearly always more difficult than working out how much grain you have.