Concept for Best Interests and worst outcomes: the Court of Protection

You would have a heart of stone to be unmoved by the ITV drama ‘Best Interests’ starring Sharon Horgan and Michael Sheen as parents whose daughter Marnie is born with a rare form of muscular dystrophy.

The story

When Marnie is just a baby, a doctor warns the parents that they should prepare themselves “for the possibility that Marnie ‘s life will not be a full one”. The four part series very sensitively explores the issues around having a child with limited life expectancy and all the complex and wide-ranging impacts on the whole family that it can have. It also provides an insight into how the Courts deal with the worst decisions we have to make as a society – when is it right to let someone’s child die? And when is it right for that decision to be taken away from the parents?

When Marnie’s health deteriorates to such an extent that her brain is unresponsive and she is existing on life support, her fictional parents do not agree with each other and with the medical team as to the right way for Marnie to be looked after and the parties end up in the Court asking for a decision as to what is the right thing to do – what is in Marnie’s best interests?

Fiction that is a reality

While the series is fictional, this is an issue which is increasing as medical developments and breakthroughs in all sorts of illnesses and conditions seem to be announced almost weekly. What parent wouldn’t hold out hope for a miracle cure being found just in time? And want life to be sustained for as long as possible?

However, the way medical teams and the Courts approach such decisions is, by necessity, very different.

The Court of Protection

The current Court of Protection was established by the Mental Capacity Act 2005 and it has the same powers, rights, privileges as the High Court. The jurisdiction of the Court of Protection includes much of the personal welfare and health-care jurisdiction previously exercised by judges of the Family Division of the High Court. All High Court judges are nominated to sit as Court of Protection judges and applications relating to serious medical treatment questions including the withholding or withdrawal of artificial and hydration from a patient in a permanent vegetative state or a minimally conscious state must be heard by a High Court Judge or equivalent.

The law around how to determine the best interests of a child in Marnie’s position was set out by Baroness Hale in the case of Aintree University Hospital NHS Trust v James [2013] which has been referred to and approved by the Court many times since it was made, including in the well-known cases involving Charlie Gard and Alfie Evans.

Baroness Hale summarised as follows: “the focus is on whether it is in the patient’s best interests to give the treatment rather than whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the Court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it….The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude towards the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be.”

Decision making in the Court of Protection

However, this does not mean that the Court has to do either what the clinicians recommend or what the parents may want – the Court must make the decision based on the evidence of all Parties and, taking that into account, calculate what they believe to be in the Patient’s best interests.

These are huge decisions at the highest level of importance – whether someone lives or dies. However, the Mental Capacity Act 2005 also carries the importance of best interest decision making into all aspects of looking after someone who is unable to make decisions, whether that is for reasons of illness or lack of mental capacity or age.

Seek help and guidance

In all of our everyday lives, we are much more likely to come across lower stakes but still very important decisions that we may need to make on someone else’s behalf. Attorneys under a Lasting Power of Attorney and Deputies appointed by the Court of Protection regularly have to make significant decisions – it may be about medical treatment, or where someone lives and how much financial freedom they have. It is important for all of us to be aware of the need to keep making those decisions as best we all can, in the best interests of the person we are looking after and to seek help and guidance if needed.


For further information, please contact our Inheritance and Trust Disputes team.