This is an easy read version of an article about people who cannot make a decision. You can read the original article in the Journal of Social Welfare and Family Law.
Part 1: When do we have to make decisions for other people?
The law in England says sometimes people cannot make decisions for themselves. Sometimes people cannot make decisions because they do not understand things. Sometimes people who are very sad or very angry cannot make decisions because their feelings are so strong. Sometimes people cannot make decisions because they cannot remember what they need to know to make decisions.
When we cannot make a decision the law says other people can make the decision for us. Usually this will be someone we know well and who knows about the decision too. If someone does not understand whether they need medicine a doctor may make the decision for them. The doctor must make a decision that is in the person’s best interests.
The law says that in deciding what is in someone’s best interests the person making the decision must think about what the other person would like. If the doctor gives someone medicine she must think about what the person likes. For example some people do not like tablets. The doctor could give them a medicine which comes as a syrup instead.
Part 2: What is this article about?
Sometimes we do not know what is in someone’s best interests. When this happens the person who has to make the decision can ask a special Court to tell them. This court is called the Court of Protection.
Judges in the Court of Protection make decisions for people who cannot make a decision for themselves. I wanted to know how the judges think about what people who cannot make decisions would like.
I looked at lots of decisions that the judges had made. These decisions are called cases. Cases are very important. Judges have to look at cases that have already been decided when they make decisions. This is to make sure we treat cases that are the same in the same way.
In most of the cases the judges do not talk about what the person who cannot make a decision would like.
There are some cases where the judge does look at what the person who cannot make a decision would like.
I looked at those cases carefully.
Part 3: What do the cases tell us?
Sometimes judges listen to what the person who cannot make a decision would like and that tells them what to decide. I looked at a case about a woman called Mrs H. Mrs H was in hospital and needed to go home. Her social worker thought she needed to move into a care home. Her husband thought she wanted to live with him. Mrs H did not understand the decision. Mrs H said she wanted to live with her husband. The judge decided she should live with her husband and get help with care.
Sometimes judges listen to what the person who cannot make a decision would like but they make a different decision. I looked at a case about a man called Mr C. Mr C lived in a care home. Mr C had learning disabilities and epilepsy. Mr C did not like his care home and wanted to move. He told the judge that living there made him feel stressed and made his epilepsy worse. The judge said that Mr C did not really want to move to another home, he wanted to live on his own. The judge said this would not be in Mr C’s best interests. The judge did not understand Mr C. Mr C was very clear. He wanted to move to another care home.
Although it was very clear what Mr C would like it was very hard for the judge to help. This was because Mr C’s local authority had a power to decide where he lived. The local authority had this power under the Mental Health Act. The Court of Protection does not have the power to make decisions about the Mental Health Act. So the judge could not make a decision about where Mr C could live.
His decision was bad. He should have said that Mr C would like to move to another home. He should have said that this was in Mr C’s best interests even though he could not make it happen.
Sometimes people who cannot make a decision tell us lots of things about what they would like and it is hard to work out what they want most. I looked at a case about a woman called Miss E.
Miss E had a serious illness called anorexia nervosa. Anorexia nervosa makes people not eat even though this will kill them. Miss E was dying. The judge had to decide if Miss E understood her decision not to eat. If she did not he could make a decision for her.
Miss E told the judge she did not want to die. But she did not want to be made to eat either. The judge decided that Miss E would like to die. But he decided this was not in Miss E’s best interests so she should be made to eat.
Miss E did not tell the judge she wanted to die. She wanted to live but she did not want to be made to eat. This was impossible. Miss E would not eat without help. And without help she would die.
Miss E wanted two things which she could not have at the same time. She wanted to live and she wanted not to be made to eat. The judge needed to decide which she wanted most. Instead he did not understand what she said. He thought she wanted to die.
Mr and Mrs A
Finally judges can muddle up the reasons why a person cannot make a decision with what they say they would like. I looked at a case about a couple called Mr and Mrs A. Mr and Mrs A both had learning disabilities.
Mr A sometimes hit Mrs A and hurt her. Mrs A got upset and told people at college and work about this. They were worried and wanted to help her.
Mr and Mrs A wanted to have a baby. Mrs A’s social worker did not know if Mrs A could make a decision about having a baby.
The judge had to decide if Mrs A could make a decision about using contraception. Contraception is used so you can have sex without getting pregnant.
The judge decided that Mrs A could make a decision about using contraception. Mrs A understood what contraception is for. She knew how it works and how it would affect her body.
Mrs A’s doctor thought she should have a type of contraception which is injected. Mrs A said she did not want to have this type of contraception. Mrs A said it would make her back ache and it would make her periods stop. Mrs A had taken this type of contraception before which is how she knew about these effects.
The judge did not talk about Mrs A’s feelings about contraception. The judge decided Mrs A did not want to take the contraception because Mr A was bullying her. He asked Mr A to stop bullying her so she could make her own decision.
I think this was wrong. Mrs A knew a lot about contraception and was able to make decisions about it. Mrs A was also being bullied by Mr A. Not listening to Mrs A meant the judge muddled up what Mrs A would like with the question of whether she could make a decision.
Part 4: Why does this matter?
Some people think it is very important to listen to the person who cannot make a decision so they can have control over their life. This is true most of the time when families or carers make decisions for other people.
It is not true when judges make decisions for people. Judges do not have to make decisions which give people control over their life. The law does not say being in control is the most important thing for someone who cannot make a decision. The law says we can decide being safe or being alive are more important.
When judges make decisions for people control is taken away from them. People who cannot make a decision do not get to choose if a judge will make a decision for them. But judges have a lot of power. Judges can ask questions about things which are private like sex. If the person who cannot make a decision does not like this there is very little they can do about it.
Maybe the problem is we do not know what being in control of our life means. Lots of people have thought about this. If we do not understand what an idea means it is hard for judges to use it when they make decisions.
I think it is important that judges listen carefully to people who cannot make decisions for themselves. But I do not think judges should do this to give people more control.
Judges should listen to people to respect their dignity.
A lot of people disagree about what dignity means. In law we can say that it means every human being has value. Everybody else should respect this value. Human dignity means there are some ways of treating people which are never OK.
People who cannot make a decisions need to be respected. Judges need to listen to what they would like. Listening to what people would like will help judges make better decisions.
Part 5: Conclusion
It is very hard to make decisions for other people. Judges have to make decisions about very hard cases.
But it is very important to listen carefully to people who cannot make a decision. Listening carefully tells people who cannot make a decision that the judge thinks their views are important. It tells doctors and social workers and carers and family members that the person’s views are important. And it tells everybody else that the law thinks people who cannot make a decision are important and should be listened to.