Further thoughts on value judgments…

Last week, whilst waiting for a train, I jotted down some thoughts about how judicial values influence mental capacity assessments and best interests decisions.  I asked – rhetorically and hoping to provoke comment – why, if the outcome of a case heard under the Mental Capacity Act 2005 could depend upon which judge was sitting in the case, we didn’t just roll dice to determine the outcome?  (I hope it was clear I wasn’t suggested that we should, in fact, roll dice…).  What is justice, in a context where the outcome itself is not wholly determined by the law and the facts, but by the identity and values of the decision maker?

I had a few emails and Twitter comments and further thoughts that I thought I’d stick up here, in case anyone is interested.

A fair few people emailed or tweeted to say that in their experience, which judge was sitting really did make a difference to the outcome of cases in the Court of Protection – some cited particular cases which they thought would have been decided differently with a different judge (it was suggested that different judges give different weight to the views of the relevant person when making best interest decisions).  However, it was also pointed out that you could say this for almost any court of law: lawyers often ask each other about their experiences of a particular judge.  I was reminded of a great paper by a colleague of mine, Rachel Cahill-O’Callaghan, on ‘The Influence of Personal Values on Legal Judgments’ (Rachel also just won the Society of Legal Scholars ‘best paper’ award for her recent paper, ‘Reframing the Judicial Diversity Debate: Personal Values and Tacit Diversity’, which I understand will be published in Legal Studies next year).  Appellate court cases are a good opportunity to examine diversity in judicial values, as they (potentially) offer multiple judgments on the same facts and law.  In her paper, Rachel looked at the Supreme Court’s ruling in R (E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and others, a case about the Jewish Free School’s entrance policy, and used a systematic content analysis to consider how different judicial values influenced the different judgments.

My comments reminded one reader of this statement in an article by Ian Kennedy (in this book):

To decide any case by reference to the formula of [best interests] must be suspect… The best interests test may be beloved of family lawyers but a moment’s reflection will indicate that although it is said to be a test….it is not really a test at all.  Instead, it is a somewhat crude conclusion of social policy.  It allows lawyers and the courts to persuade themselves and others that theirs is a principled approach to law.  Meanwhile, they engage in what to other clearly a form of ‘ad hocery’.  The best interests approach of family law allows the courts to atomise the law, to claim that each case depends on its own facts.  The court can then respond intuitively to each case while seeking to legitimate its conclusion by asserting that it is derived from the general principle contained in the best interests formula.  In fact, of course, there is no general principle other than the empty rhetoric of best interests; or rather, there is some principle, but the court is not telling.  Obviously the court must be following some principles, otherwise a toss of a coin could decide cases.  But these principles, which serve as pointers to what amounts to best interests, are not articulated by the court.  Only the conclusion is set out.  The opportunity for reasoned analysis and scrutiny is lost.

It reminded others of Daniel Sokol’s comments about the case Re E (Anorexia).  Jackson J had said ‘The [best interests] balancing exercise is not mechanistic but intuitive and there are weighty factors on each side of the scales’ (paragraph 129).  Sokol likened this statement to a comment by Wittgenstein in the Philosophical Investigations, ‘If I have exhausted the justifications I have reached bedrock, and my spade is turned. Then I am inclined to say: ‘This is simply what I do”.  Yet, Sokol notes, we might ‘wonder why the balance tips that way and not the other’, and for Sokol (and, I confess, for me), the intuitive balance tipped another way in that case:

When I balance the scales, they fall slowly but unmistakably in the direction of palliative care. The violence, duration, and trauma of forced feeding, the grim prognosis, and E’s clearly articulated wishes (even without legal capacity) trump, in my view, the preservation of life and the other factors in the list. Yet, faced with such a finely balanced dilemma, I doubt that either law or ethics yields a single right answer.

I still ponder this case.  Especially since we now know that E is still alive, albeit still in hospital (see paragraph 57 of A NHS Foundation Trust v Ms X).  I do worry that we’re missing out on an essential ‘feedback loop’ about these values and judgments, since we only very rarely find out what happened next and how a person felt about the decision afterwards.  I’m not asking readers to start telling me (contempt alert!), simply to say that I feel this is a really important issue for researchers and those practicing in the area.

Lord Hoffman (who I quoted in my previous post) said that as far as possible settled societal values should inform judicial decision making, but in many cases in the family courts (and the Court of Protection), such values are not settled, and are very much evolving.  Judicial discretion is necessary to respond to changing societal values.  A really good example of this is shifts in thinking about where is the ‘best’ place for young adults with learning disabilities to live – their families or some kind of formal care service.  In 2002 in Re S (Adult Patient) (Inhererent Jurisdiction: Family Life), Munby J (as he then was) stated that ‘the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution — however benign and enlightened the institution may be, and however well integrated into the community’.  Fast forward a decade to the Court of Appeal’s 2013 ruling in K v LBX, where it was suggested that there was no such starting point and never had been (a somewhat surprising conclusion), but that in any case there had in recent years been a shift towards policies of ‘normalisation’ or promoting independent living.  Lady Justice Black stated that ‘The norms and values of society change over time, as do the ways available to attempt to meet people’s needs’ and that she would not wish ‘to impose upon that exercise a structure which is not contained within the Act which confers the various powers and duties and dictates how they should be exercised’ (paragraph 51).  The underlying law itself has not changed here, but the values used to determine ‘best interests’ are shifting.

It was also suggested to me that publishing more judgments helped judges to make less risk averse decisions, as they could see that other judges were taking risks and this emboldened them.  I think this raises some really important issues about ‘transparency’ as a potential feedback mechanism which can influence judicial values, and therefore influence judicial decision making even if it is not legal precedent as we know it (Captain).  I have sometimes heard it argued by lawyers that it’s not necessary to publish many judgments in the Court of Protection, as they rarely establish new legal principles, but simply apply the same law to different facts.  I do (increasingly) have concerns about the privacy of litigants as we publish more judgments.  But at the same time, if these decisions are not differing because of the law, but because of the application of different values, I do wonder if ‘transparency’ is important as a mechanism for ‘society’ to reflect back to the court it’s approval or disapproval of the values being applied.  I am pretty sure that – in addition to reading and reflecting on each others’ decisions – most judges will also read and listen to media and other comment about cases they or their peers have decided, and I am sure that this prompts further reflection and may ultimately influence future decisions.

And finally, it was also pointed out that even though it is all subjective, ‘at least the judge has some independence and detachment’.  The alternative is that it’s a value judgment made by the professionals already involved in the case.  I can see that this would be especially problematic when you’ve got a history of thorny relationships, and/or conflicts of interest about resources or other issues.

All very interesting comments, thanks ever so much for sharing your thoughts, and more are always welcome!

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3 thoughts on “Further thoughts on value judgments…

  1. This and the previous post, Lucy, are so interesting, and touch on something that has been bothering me for ages, and I think touch upon an impossible conundrum. We need a system that is, at heart, adminstered by human beings, but, as we know (and we spend our time trying to explain in the best interests context) human beings are infinitely variable. We can certainly seek to ‘train out’ (and possibly ‘name and shame out’) the more egregious examples of judicial irrationality, and we can work harder to try to make sure that proper reasons are given for why judges do what they do, but I do not see how our present system (or indeed, frankly, any system that I would like to work within) can operate without an inevitable degree of unpredictability dependent upon the people involved.

    I would widen the conundrum you identify, though, because the end result in so many CoP cases (whether as to capacity or best interests) will be a cocktail not just of judicial values (spoken or unspoken) but the values and cultures of the lawyers involved, the experts, the litigation friend, and possibly even a function of whether the listing officer had had a bad day and listed two cases back to back. The cocktail (or possibly also, better, the dance) also involves P with all P may bring by way of their background, their culture, their difficulties – and all the more so the more work is done to bring P into the heart of proceedings.

    All the more reason why I think that all those involved in the work of the court need to ensure that we practice and preach self-awareness so that we can, insofar as possible, try to be clear-eyed about what it is that we are doing and why it is that we are doing it (and, of course, we all need to keep reading your site and visit http://www.mclap.org.uk from time to time!)

    • Thanks very much Alex. I still don’t feel like I’ve quite ‘exhausted’ this thought – it raises lots of questions about the rule of law and also under ‘republican’ theories of non-domination. The idea of lawyers worrying about how to appeal to particular judges’ quirks and whims would be highly antithetical to republicans – although they would be reassured that there are appeal mechanisms, the fact is – as Lady Hale’s judgment points out – appeals are supposed to be on points of law not values…

      Your comment about the influence of all the other actors in the legal system called to mind two other papers I’ve enjoyed. The first is Montgomery, J., Jones, C. and Biggs, H. (2014) ‘Hidden Law-Making in the Province of Medical Jurisprudence’, The Modern Law Review, 77(3), 343-378. They comment that ‘medical law cases have frequently involved vulnerable and incapacitated persons has meant that the Official Solicitor has often been involved in the key cases, and has played a consequential role in codifying practice, and to some extent thereby codifying the substantive law too’. They go on to say ‘One of the interesting consequences of the consistent involvement of the Official Solicitor is that it led to a tendency to instruct the same counsel’ (ahem) – pointing to the influence of Sir James Munby in particular in developing the law.

      The other point is that most of the key players and repeat players in the system are people from quite a narrow section of society (not that I’m suggesting that it’s any better for researchers…). In a brilliant paper by Tom O’Shea and Fabian Freyenhagen, they argue that the MCA ‘smuggles in’ hidden evaluative commitments. They argue that these ‘hidden values’ should be made much more transparent, and that courts/tribunals themselves should involve people with disabilities and representative organisations in adjudicating on them (Freyenhagen, F. and O’Shea, T. (2013) ‘Hidden Substance: Mental disorder as a challenge to normatively neutral accounts of autonomy’, International Journal of Law in Context, 9(1), 53-70.). I’m interested in the idea that one solution is to look at institutional structures – including, but not limited to, increasing the participation of the relevant person, to amplify their ‘voice’. Instead of waiting for disability activists and other organisations to comment on published judgments, could there be some mechanism to get that voice into the the courtroom, so that the law (and its underlying values) aren’t just shaped by the very professionals that the disability movement have been railing against for decades? I’m not sure how that can be achieved except by widening the concept of ‘expertise’ and perhaps encouraging more interventions by disability organisations – but it’s hard to see how to do the latter without a) raising contempt issues, and b) taking up more court time and the resources of parties.

      Hmmm…

  2. As an individual, I value “independence” very highly and always have. As the aging mother of an adult woman who lacks capacity, the word terrifies both of us. Within her family, my daughter feels she has some independence, because she has respect and understanding, and we do, all, try to meet her “best interests” out of intimate knowledge. The cash strapped versions of independence offered elsewhere are scary, and the idea that her “best interests” can be ascertained on brief acquaintance with someone with language problems bewildering.

    As a lay deputy I sometimes wade through reports of judgements and of course blogs like yours trying to work out for myself what “best interests” are, and as you say, wonder what the actual long term outcomes might turn out to be, and, if I ever find myself involved,that the “values” of the judge might be a crucial factor.

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