Taking wishes and feelings seriously: the views of people lacking capacity in Court of Protection decision-making

Abstract

The Mental Capacity Act requires that where a person (P) lacks capacity to make a decision her wishes and feelings be taken into account when deciding what is in her best interests. This article considers how the Court of Protection evaluates evidence from P concerning her wishes and feelings. It finds that the Court ignores evidence regarding current wishes and fails to engage with more ambiguous evidence where P desires conflicting outcomes or may be concealing her true feelings. This is unhelpful since it makes the resulting judgment unconvincing to observers. It is legally problematic, since the Court should be following the practices of other decision-makers under the Mental Capacity Act (MCA). And it is ethically problematic since it undermines P's dignity and does not treat P as an actor whose evidence regarding her wishes and feelings has intrinsic status which the Court must make active efforts to engage with or discount rather than ignore.

Keywords::

• mental capacity
• Court of Protection
• dignity
• best interest
• autonomy

Acknowledgements

The author would like to thank Peter Bartlett, Sammie Currie, Leon McRae, Isobel Roele and Ralph Sandland for their very helpful comments on earlier drafts of this article.