An Aide Memoire for a Balancing Act? Arguing against the ‘Balance Sheet’ Approach to Best Interests Decision-Making in Mental Capacity and Family Law

The balance sheet is commonly used as a deliberative approach to make determinations about an individual’s ‘best interests’ in Court of Protection and Family Court cases in England and Wales, since Thorpe LJ in Re A (Male Sterilisation) described the balance sheet as a tool to enable judges to quantify, compare, and calculate the different options at play.  More recent judgments gesture towards growing critical reflection around the substance and practical function of the balance sheet approach, with McFarlane LJ recommended the balance sheet as an ‘aide memoire of key factors’ rather than ‘a substitution for the judgment itself.’  In this presentation, I argue that recent disagreement around the balance sheet has normative and practical significance in two ways.  First, this disagreement reveals a growing acknowledgement that best interests decision-making appeals to goods and values that resist the questionable normative commitments implied in the concept of balancing, such as commensurability, unitary notions of the good, or the existence of a single ‘cover value’.  Second, this disagreement has stimulated the implicit correction of a core conceptual misunderstanding underlying applications of the balance sheet in the courtroom thus far, particularly around the conflation between value commensurability and value comparability.  Clarifying and resolving these conceptual and normative issues also has important practical implications.  The uncritical application of the balance sheet means judges take up implicit commitments which can overdetermine the outcome of their best interests decisions, or which poorly reflect the actual process of deliberation.  The decision-making of judges then fails to properly reflect the nature of values at stake, as well as the skills of practical judgement needed to compare the relevant values with sensitivity and nuance.

This presentation proceeds in 4 parts. Part 1 provides a brief legal analysis of the balance sheet approach, comparing its application in the Court of Protection and Family Court.  Here, I focus on revealing judicial disagreement around the function of the balance sheet, as well as the interplay between this deliberative approach, judicial values, and its implications on the participation of P in proceedings.  In Part 2, the practical and conceptual problems with the balance sheet are critically analysed through the practice and theory of judging proportionality, particularly in the application of human rights law.  Part 3 delves deeper into the theoretical presuppositions of the balance sheet, drawing attention to the ways in which these presuppositions reveal a potential lack of fit between this approach and the nature of the goods at stake in best interests decision-making, as well as the necessity of practical reasoning and substantive evaluation in deciding between divergent values and goods.  I then conclude by applying my theoretical analysis to the question of whether judges can justifiably appeal to the balance sheet in Part 4, and, arguing that, indeed, they should not. Instead I claim that strategies of practical reasoning about best interests in the process of judicial decision-making need to be reconfigured in light of the concerns identified.