Factors of ‘magnetic importance’
Articles | Thu 17th Mar, 2016
The judgment in PB v RB and London Borough of Haringey  EWCOP 12 (26th February 2016) contains an elegant analysis of the best interests test under s.4 of the Mental Capacity Act 2005 (MCA 2005).
The case concerned an elderly woman (P) who suffered from dementia. In January 2013, the Court of Protection determined that she lacked capacity to decide where to live, and that it was in her best interests to live alone at her home address. However, towards the end of 2014, P was admitted to hospital and moved to a care home. Proceedings were commenced for a second time. There was no dispute that she lacked capacity. The primary issue was whether it was now in her best interests to remain where she was or to return home.
District Judge Eldergill considered the factors in ss. 4(3), 4(4), 4(6) and 4(7) MCA 2005, before addressing other circumstances such as P’s needs, the conduct of her son, her prognosis, and autonomy. Having balanced those factors, the Judge found that it was in P’s best interests to remain at the care home. In the absence of a clear and consistent wish to go home, and given his finding that she would be sad to leave the care home and would be less happy at home, the ‘factor of magnetic importance’ was P’s happiness.
This is a further example of the Court of Protection applying the ‘magnetic importance’ doctrine, when making decisions about best interests.
The concept was first developed by Thorpe LJ in White v White  Fam 304 and Crossley v Crossley  EWCA Civ 1491, and has subsequently been endorsed by the Court of Protection in cases such as ITW v Z (2009) EWHC 2525 (Fam) and KGS v JDS  EWHC 302. It acknowledges that, although there is no formal ranking or hierarchy between the various factors in s.4 MCA 2005, there may be cases where one or more factors are of ‘magnetic’ importance in influencing or even determining the Court’s decision’
The case demonstrates the flexibility of this doctrine. In 2013, the ‘magnetic’ factor was the need for P to live at home. In 2016, it was the need to secure her happiness.
More generally, however, the decision illustrates the evaluative nature of the assessment under s.4 MCA 2005. The Court must first identify and consider a range of factors, including inherently ‘fuzzy’ principles such as harm, happiness, dignity, autonomy and privacy. Having done so, the Court must then go on and conduct a difficult balancing exercise. Unlike the forensic approach to fact-finding, the Court is not concerned with evidential cogency or where the truth lies. Instead, the Court must weigh up these factors, which often conflict and collide, and do its best to decide what is best. As acknowledged by Lewison J in Re P  EWHC 163 (Ch), this ultimately involves a ‘value judgment’.
Article by Tom Rainsbury