I’ve been thinking quite a bit lately about the stories told in Court of Protection judgments. As Mark Neary recently wrote, judgments of the Court of Protection ‘are fabulous page turners’ (well, some are, quite possibly not the more procedural ones). Ian McEwan described in The Guardian how a chance conversation with Sir Alan Ward led him to read a number of family division cases, which ultimately inspired his recent novel The Children Act. He wrote ‘If these judgments had been fiction, they would have belonged in the tradition of moral exploration that includes Jane Austen, Leo Tolstoy, George Eliot, Henry James, Joseph Conrad.’ When we teach law, we often engage students’ imaginations and interest through the presentation of a story, giving them the facts and asking them ‘what do you think happened next?’, what do you think should happen next?’ Their answers are never wholly determined by the law, because whilst a satisfying ending in the law and justice storytelling tradition should certainly comply with the law, the law itself is not enough. When we tell students the story of Elaine McDonald, the ending is inherently unsatisfying, distressing even, because they are expecting a story of justice and whether or not the decision was legally correct it feels very far from this.
A judgment is a story told by a judge to demonstrate that his or her decision conforms to the requirements of the law and – because the law is never wholly determinative of the outcome of a case – that their decision is in keeping with the wider social, ethical and political demands of the audience they are appealing to. As I’ve written about before, decisions on best interests – and to a certain extent on capacity as well – are never determined by a mechanistic application of the law to the facts. Two different actors could completely correctly and appropriately apply the best interests checklist and arrive at very different decisions. In legal commentaries, we characterise this as variations in the ‘weight’ that decision makers apply to the different factors. But even that phrase, ‘weight’, carries the suggestion of a quantitative balancing exercise (the ‘best interests balance sheet’), as if the decision makers went through each point on each side of the scales and gave them a value on a commensurate scale, then totted them up to ‘discover’ which way the scale tips. And yet I feel that this loses something of what is happening in a decision: are we really balancing a range of different factors, totting them up as if two medium size factors could outweigh a larger factor, and ‘discovering’ which outcome has more weight when we look at which way the scale tips, or are we drawn to a particular outcome because we find it a more inherently satisfying way to complete the narrative?
In a roundtable event we held last year on transparency in the Court of Protection, one of the questions for discussion was who are judgments written for? One view expressed was that they are for the parties, so that they can understand the reasons for the decision and appeal against it if necessary. But judgments are not merely there for appeals on points of law, they are also there as a form of justice in themselves. Think of the justice done by Jackson J’s judgment in LB Hillingdon v Neary – the emotional power of the judgment lies in the construction of Mark Neary as a good father and Steven Neary as a very distressed young man who was wrongly kept from his home, and how this narrative contradicts the story told by Hillingdon. The judgment cites Magna Carta, yet this medieval document serves no real legal function in the judgment (the ECHR does the trick) – rather, its presence serves to evoke the majesty and timelessness of the kind of justice done when restoring a person to their home and family.
To what extent are judgments of the Court of Protection written for the person whom the case is about – P – to understand what has happened to them? It’s hard to make any generalisations, and there are some rare cases where embedded in the judgment is a message from the judge directed towards P (e.g. Jackson J addresses M at paragraph 11 of Re M (Best interests: deprivation of liberty)). To the best of my knowledge there are no examples of ‘easy to read’ judgments for P where P has learning disabilities, or plain English judgments written in language that could more easily be understood by P to accompany the judgments containing the more technical legal information. Perhaps this is because it is viewed as part of the role of P’s representatives to explain the judgment to P – but what does that say, that it is not part of the role of the judge themselves to address P directly?
In those cases where P can understand the judgment (I imagine that there are some of these, perhaps E in Re E, or some of the cases about childbirth where women experience an acute – but transient – crisis, which abates after delivery and recovery), do they read them and what do they make of them? Do they recognise themselves?
Since the Court of Protection was created in 2007, it has been dogged by allegations of ‘secrecy’. Increasingly, judgments handed down by High Court judges – and some district judges – are made available on BAILII (partly in response to transparency practice guidance). The ‘audience’ of these judgments is now the public, not merely the parties and their lawyers. The judgments are there to explain and justify the decisions to the wider public. They are picked up by the media and make headlines. From a journalistic perspective, they are relatively easy headlines: all one needs to do is monitor BAILII and wait for a juicy story to summarise for your paper. It wouldn’t be news if the events took place in somebody’s personal life, but as it took place in a courtroom, it becomes news. As a news story, not merely the decision but the surrounding facts and characters in the judgment are available for public scrutiny and comment. Newspapers may seek out further facts – tracking down friends and family members for comment, in the same way they would for stories about celebrities.
Recently the Court of Protection has handed down a string of very compelling judgments, many of which have been picked up by the mainstream media. The Wye Valley case concerned Mr B, a man who had been diagnosed with schizophrenia who refused to have his leg amputated – notwithstanding that without the surgery he would die in a matter of days. In what Mostyn J was later to describe as an ‘exceptionally eloquent, moving and lucid judgment’ (which it certainly was), Jackson J describes Mr B’s life, his meeting with Mr B, his appraisal of his character as ‘fiercely independent’, and why he decided that it was not in Mr B’s best interests to be forced into treatment against his will. In Re N Hayden J considers whether it is in the best interests of a woman in a minimally conscious state not to replace her feeding tube, allowing her to die. He recounts descriptions of her character from her family in not especially flattering terms and concludes that ‘it would be disrespectful to Mrs. N to preserve her further in a manner I think she would regard as grotesque.’ And this week, the case of C – the woman who wanted to die because she had ‘lost her sparkles’ – has made headlines in every major UK newspaper. Like N, C is depicted by Mr Justice MacDonald in not especially flattering terms, as having ‘led a life characterised by impulsive and self-centred decision making without guilt or regret’. After a failed suicide attempt, she refused dialysis treatment (offered by her ‘dedicated treating team’), and MacDonald J concluded that C had the mental capacity to do so – notwithstanding that others might regard her decision as ‘unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general’.
I’ve been thinking a lot about these cases, the ways in which these stories are told and the life they have taken on outside the courtroom. Part of the attraction of these stories in the media is the sheer level of detail and ‘colour’ contained within the judgments. This is not inevitable in a judgment – as one participant put it at our transparency roundtable ‘it is possible to be a lot more boring than an English judge’ – highlighting traditions in other jurisdictions which engaged far less with this level of personal detail. Yet, I wonder if this level of detail is part and parcel of the approach to capacity and best interests decisions that is emerging under the Mental Capacity Act 2005.
As readers will know, I am very interested in the approach to legal capacity emerging in connection with Article 12 of the Convention on the Rights of Persons with Disabilities. On this emerging approach, decisions should not be taken in people’s ‘best interests’ but on the basis of their ‘will and preferences’ or – if these are not clearly ascertainable – the ‘best interpretation of will and preferences’ on the evidence available to the decision maker. In a frequently cited report suggesting how to implement Article 12 CRPD, Bach and Kerzner propose a ‘narrative approach to human agency’:
What ascribes personhood to us, as a person who is to be trusted through time, is that we can answer the question – ‘Who are you?’ ‘Who is she?’ – with a coherent narrative, a life story that makes sense of all the changes, and losses, and new directions and discontinuity, of illness and of healing, that make up any person’s life. We become a person to the extent that we can, or that others who have personal knowledge about us can, tell a coherent story about who we are. Our actions and intentions can be made sense of in the context of the narrative coherence. It is this narrative coherence of my particular and unique life that renders reasonable the decisions that give effect to my intentions, not some abstracted ‘reasonable person’ standard; even if I need substantial assistance from others to make and carry out the decisions, my intentions or will inspire and motivate in those who know me well.
In other words, the ‘correctness’ of a decision is not whether it is a decision a ‘reasonable’ person would have made, but its narrative coherence when others tell the story of the person’s life. When I first read this report, I found this approach quite compelling. It felt more intuitive than determining what a person’s ‘will and preferences’ were – with all the metaphysical conundrums this raises. And I think that the recent judgments described above in Wye Valley and Re N are good examples of what a narrative approach could look like. I include Re C in this as well because, although it was about capacity and not best interests, the conclusion that she has ‘capacity’ is justified by reference to aspects of her life narrative as recounted by the judge.
But even though the outcomes in each of these decisions seem to be in keeping with the spirit of the CRPD (the person gets what they want, or likely would have wanted), and they do – to my mind – satisfy Bach and Kerzner’s test of narrative coherence, reading them left me feeling quite uncomfortable. Particularly in the cases of N and C, the phrase that kept coming to my mind was: character assassination. I know that both N and C got the court decision that they probably wanted, but I wondered how they felt (or would have felt) about the way in which they were depicted in the judgment? Would that have feel like justice to them? How would they have felt about the wider public reading these decisions, and how did their families in fact feel (especially given much of the description came from that of their families)? We know that C’s family are opposing the her identification in the media. I’m not suggesting that the families were wrong to give what they saw as a fair and accurate portrayal of their relative – far from it – but did they envisage this description then appearing in a judgment which would then be read by the wider public? I also started to wonder what ‘work’ these character descriptions were doing in the judgments. Does it really have anything to do with the decision in N’s case that she was ‘selfish’? On a strict best interests approach, quite possibly not (is it ‘selfish’ not to want to live in a minimally conscious state?) – but on a narrative approach, perhaps it does.
These judgments put the narrative approach in a new light for me, a light where the story told by the court (or decision maker) may well not be the story that the person would tell about themselves, even if others might recognise them in it. The underlying narrative arc of these judgments is liberal pluralism: even if your values are incommensurate with those of wider society, the court will uphold them. And liberal readers will no doubt celebrate the judgments for this. But the problem is that in presenting the cases in this light, quite significant symbolic violence is wrought on the person at the heart of the case, who has to be characterised as holding the ‘wrong’ values.
The problem is aggravated by transparency: it’s bad enough to have your family describe you as selfish to a judge and for the judge to describe your decision as potentially ‘unreasonable, illogical or even immoral’, without it appearing in The Guardian, The Telegraph, The Mail, The Independent and The Times (who described her as a ‘fading socialite’). But even if the judgments in these cases were not published, they highlight one of the uncomfortable truths about narrative approaches to capacity: the tremendous power of the storyteller to both publicly define the person and to shape their ending.
Zoe Williams, for The Guardian, asks a number of questions about C’s case – about the way C is presented, and the tone of the judgment. She raises the question of whether the attitudes and assumptions of the judge shaped the outcome of the case. To which the answer is: well, of course – what decision maker doesn’t bring their own attitudes and assumptions to decisions like this? But the important thing about these decisions is not that the judge is basing them directly on his or her own values – the judge in many of these cases is quite careful to distance themselves from the values they attribute to the person, and to state that their decision is based on the person’s own values, not those of the judge or wider society – but the decisions are based on the ways in which the decision maker, through their narrative power, chooses to characterise that person’s values. And this characterisation will inevitably be shaped by their own assumptions, outlook and values. In other words, the narrative approach doesn’t mean that the decision maker’s own values don’t play any role in the decision – they do, but they do so indirectly and less transparently. We see the situation and the characters in it through their eyes, and their own moral, social and political outlook.
This is understandable: ultimately on a narrative approach (or a ‘best interpretation of will and preferences’ approach), at some point the decision maker must characterise what they see as the person’s values, their essential attributes which would have influenced how they make the decision. But what these cases reveal is that there is still tremendous power for the decision maker to characterise a person in a particular way, to interpret how particular values or character traits would play out in the decision. And even if we view the decision as likely to be ‘correct’ in the sense of it being the decision that the person themselves would have made, the very act of constructing a person in this way could potentially be harmful and distressing for them. It seems ironic and troubling that the conclusion of a case about an attempted suicide is a judgment that would hardly make anyone feel like a valued member of society.
I didn’t mean to write this post as an attack on the outcomes of the particular decisions made in these cases (I think they were good decisions), nor on transparency nor the ‘narrative approach’. Simply to say that there is something about these cases that sat uncomfortably with me, something about how revealing they are of the power of the stories we tell. I don’t have a solution to this problem – if we want transparency, we need published judgments; if we want decisions based on the person’s ‘will and preferences’ or ‘narrative’, we have to engage with those as best we can, and nobody can escape from bringing their own values and assumptions and ‘tone’ to that role. I suppose I’m just expressing discomfort with where that sometimes leads us. I think we need to think carefully not just about the ethics of the decisions the courts make, but about the ethics of storytelling as an act in itself. What is the impact of these stories (and their life outside the courtroom) on the real life individuals involved in these cases – and those close to them, and how do they shape the public’s view of the populations whose lives are administered by the court?
Update (5/12/2015): An interim judgment has just been published on an application for reporting restrictions by C’s family, prohibiting the identification of C and opposed by the Daily Mail. I feel awful for the family in this case; how terrible to lose your relative in this way, without having to go to court and then to battle for your privacy afterwards. My heart goes out to them. Importantly, the judgment tells us that they did not anticipate this level of press interest and that ‘The family would not have given evidence in the candid way that they did if they considered there was a risk of them being identified.’ They submitted that the judgment reflected ‘discredit on C’, and that ‘C’s youngest daughter is 15 years old, she is vulnerable and has been shielded from many of the details about her mother’s life. The adverse impact on her of being identified as the daughter of the woman described in the judgment is considerable.’ Theis J ruled that the reporting restrictions on identifying C would remain in place for 7 days, pending a substantive hearing where she felt that the family had ‘an arguable case’ for the extension of the RRO.
[This will probably be the last blog post I write in quite a while. I’m going to take a break from blogging as I’m going on maternity leave, and won’t return to work until the autumn of 2016. As a lot of people have asked me to let them know when the baby arrives, I’ll keep you posted… ]