There are many brilliant things about having a job that keeps you busy and interested, but finding time to blog isn’t one of them. But my commute home today had me waiting for a train with just enough time to pin down a thought that’s been buzzing around my head lately. More a question really; I’m sure somebody out there has thought about this before and perhaps written about it, and I’d be interested to hear other people’s views.
A few weeks ago, Ian McEwan wrote an article about judgments in the family courts in which he talked about the tensions between law and religion. He quoted Sir Alan Ward’s opening remarks in Re A (children) (conjoined twins), that ‘This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us – a situation which is unique’. This ‘mechanistic’ view of law appears to leave little room for judges’ own values and beliefs to creep into judgments. You go to court to find the right answer; there is only one outcome that can be arrived at if one correctly applies the law to the facts. But of course, as McEwan points out – the family division judges do make moral choices, and he quotes from Lord Hoffman in Piglowska v Piglowska, a divorce case:
‘These guidelines, not expressly stated by Parliament, are derived by the courts from values about family life which it considers would be widely accepted in the community. But there are many cases which involve value judgments on which there are no such generally held views… These are value judgments on which reasonable people may differ. Since judges are also people, this means that some degree of diversity in their application of values is inevitable and, within limits, an acceptable price to pay for the flexibility of the discretion conferred by the Act of 1973. The appellate court must be willing to permit a degree of pluralism in these matters.’
This is a theme that recurs in family law and in the Court of Protection (and no doubt elsewhere).
In the Court of Protection, the Aintree case is a good example of this. The NHS Trust had sought a declaration from the Court of Protection that it was not in David James’ best interests to receive invasive treatments that might prolong his life. In the High Court, Jackson J had refused such declarations on the basis that ‘recovery does not mean a return to full health, but the resumption of a quality of life that Mr James would regard as worthwhile’. But this decision had been overturned in the Court of Appeal, which essentially held that no ‘reasonable’ person could want those treatments in Mr James’ circumstances. Subsequent to this ruling, Mr James died, but the decision was appealed nonetheless. Handing down judgment in the Supreme Court, Lady Hale stated that the ‘best interest’ approach was a subjective one – and rested on the person’s own point of view. And so in that sense, she preferred Jackson J’s reasoning to the Court of Appeal’s. However, she herself reached a different conclusion to Jackson J – feeling that ‘I would probably have declared that it would not be in the patient’s best interests to attempt it’ (§42). Despite agreeing with the outcome of the Court of Appeal’s ruling rather than Jackson J’s conclusion, she commented:
‘if the judge has correctly directed himself as to the law, as in my view this judge did, an appellate court can only interfere with his decision if satisfied that it was wrong: Re B (A Child) (Care Proceedings: Appeal)  UKSC 33,  1 WLR 1911. In a case as sensitive and difficult as this, whichever way the judge’s decision goes, an appellate court should be very slow to conclude that he was wrong’ (§42).
There is a general recognition that the trial judge knows more of the facts of the situation than the appellate courts, and on this basis appellate courts are often reluctant to overturn decisions that are not manifestly wrong at law (for example, in H (A Child), 2012*). It was most likely on this basis that Lady Hale commented in Aintree that appellate courts should be ‘slow to conclude’ that trial judges are wrong. But at the same time, she herself – an appellate judge – came to a different view than Jackson J about David James’ best interests. In other words, although she may not have concluded he was wrong at law, had she been the trial judge she might have decided differently. So the law and the facts** do not of themselves determine the outcome: there is something more, something more subjective and particular to the individual judge, that influences the outcome in these types of cases.
There are other judgments of the Court of Protection that acknowledge more explicitly that best interests decisions are influenced by judicial values, although I can’t find them right now (and I want to sign off and watch Downton, but if you can think of them please do make suggestions in the comments below!). But this was my thought: according to Lord Hoffman, these types of decisions occur in circumstances where there are ‘no such generally held views’ and ‘on which reasonable people may differ’. But this could be held to be true for many, many (if not the majority) of the types of issues that the judges of the Court of Protection have to make decisions on. I don’t mean this as a criticism of them. The judges of the Court of Protection (and the Family Court) make the most phenomenally difficult decisions, about people in the most phenomenally difficult circumstances. It is no wonder that these courts are magnets for the media, academics, philosophers and (now) writers – they wrestle with incredibly difficult social, political and existential matters. I would not want to be a judge. And the ‘pluralistic’ principles of the Mental Capacity Act 2005 leave decision makers (including judges) with remarkable discretion, and they have to plug that vacuum with something. But it’s quite an odd thought – that the outcome of a decision of the Court of Protection might simply depend upon what judge you get on the day. That life or death decisions like Aintree might depend upon a quirk of the listings.
One almost wants to ask: why don’t we just toss a coin, instead of going through a process that is tremendously stressful and costly and exposing? For a person challenging a capacity assessment or best interests decision which they object to, the opportunity to roll the dice again by going to court would leave them no worse off and might leave them better off. But I think our gut instinct (or my gut instinct) that this would simply be utterly wrong tells us that there is something that we value about the process itself, regardless of the outcome. We could roll the dice and get an outcome that we preferred, but still feel that this was not justice. But what is it that we value about the process? Why don’t we just roll some dice?
*Thanks to Julie Doughty for pointing me to this case.
**Not forgetting, of course, that even ‘facts’ can themselves be very value laden.