19 November 2010 - Court of Protection gives guidance on best interests test in G (TJ)

Mr Justice Morgan, sitting as a judge of the Court of Protection, has held that a 'substituted judgment' approach may be relevant when considering what is in the best interests of a person lacking capacity pursuant to section 4 of the Mental Capacity Act 2005.

In July 2007 G (through her receiver) and her husband had been directed to make maintenance payments to their daughter, with each of them being required to pay half of the total liability. In January 2010, G's husband died. It fell to the court to consider whether G's deputy should now be required on behalf of G to make up the shortfall in the maintenance payments that existed following his death.

The court held that G's deputy should be directed to make the payments. Under section 4 of the the Mental Capacity Act the patient's actual wishes and his/her beliefs and values could be taken into account along with the other factors that the patient would be likely to consider, if he or she had capacity to consider them. In many cases the court would be able to determine what decision the patient would have made if he or she had capacity. The court could consider this element of 'substituted judgment' analysis as part of the best interests test, but the ultimate test remained whether taking a particular decision would be in the patient's best interests.

The court held that in G's case, she would have wished to make the full maintenance payments if she had capacity and that this 'substituted judgment' approach defined what was in her best interests given the absence of any countervailing factors.

Barbara Rich appeared for the deputy. David Rees appeared for the Official Solicitor. Morgan J.'s judgment can be found here.