Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 47
between available options, then the entire focus is on
the individual’s interests.
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38. The assessment of best interests includes, but is
not limited to, consideration of the risks and bene昀椀ts
of proceeding with the planned treatment, and of
not doing so. Evidence about risks and bene昀椀ts
requires careful consideration. Unavoidably, the
evidence before the Court tends to focus on numerical
assessments of risk and bene昀椀t, such as a 40%
chance of a risk occurring, or a 5 year extension of
life expectancy. In many cases, including the present
case, such evidence has to be treated with caution.
Predictions cannot be made with precision when they
are based on very limited data. There are no large
studies of 18 year olds having elective heavy sedation
and mechanical ventilation for two to three weeks
after corrective surgery for scoliosis. If not unique, the
plan for RS is extremely unusual. The Court relies
on expert and professional opinion evidence but in
this case much of that evidence is based on personal
experience.
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39. Decision-makers have to look forward and so
have to deal with uncertainty. It is a frequent mistake
to believe that if something goes wrong after a decision
then the decision must have been wrong. If a decisionmaker choses option X over option Y because X has
a 90% chance of success and Y has only a 50%
chance of success, and X fails, it does not mean that
they made the wrong choice. There is rarely a risk free
option, and there certainly is not one for RS. Where
there is risk, there is the possibility of a poor or even
a fatal outcome, but risk is inevitable, in particular
when the decision to be made is 昀椀nely balanced.
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41. Judges are not inherently better at assessing risks
and bene昀椀ts than those intimately concerned with a
person’s care and treatment, including parents and
medical professionals, but there are di昀昀erences:
43. It might be argued that some of these di昀昀erences
place judges at a disadvantage. Some would say
that fundamental decisions about a person’s medical
treatment should be made by those who know them
best and who will be living with the consequences.
However, the law requires that when disputed or
昀椀nely balanced decisions regarding medical treatment
of this kind are brought before the Court, it is the Judge
who makes the decision as to what is in the person’s
best interests, applying the principles and provisions
of MCA 2005. Court procedures are designed to
ensure fairness to all the parties involved. The process
requires the judge to be objective. Responsibility for
the decision is taken away from the family and the
clinicians who may 昀椀nd objectivity di昀케cult to achieve
and is placed in the hands of the Judge. Precisely
because the Judge is one step removed from the day
to day care of the individual, they may 昀椀nd it easier
to take a balanced overview than those with a
particular, personal perspective.
51. The responsibility for this decision is now the
Court’s. I was told that GH did not want to bear the
weight of responsibility herself. She wanted all the
clinicians to agree. That has not quite been achieved
but she should know that whilst her evidence is of
considerable assistance, the decision is not hers and
the responsibility for the decision lies with the Court.
Likewise, the treating clinicians, including those with
doubts about the merits of the decision, can focus on
giving RS the best possible care without worrying that
they made the wrong call.
Conclusion
Reading this judgment was in some ways mildly
surreal, as I did so under 24 hours after having
recorded a conversation with Professor John
Coggon4 about whether mental capacity law is law,
in which we got quite deep into what judges are
doing and why. Poole J’s observations almost read
like he had been privy to that conversation. They
41.1. Judges have some distance from the
person whose treatment is under consideration.
Unlike those intimately involved with the
individual’s care, judges will not have
responsibility for carrying out the treatment,
dealing with complications, or living with the
direct consequences of the decision.
EXPERT WITNESS JOURNAL
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42.3. Judges can take a neutral overview
having taken into account the family’s
perspective and the clinicians’ perspective.
In RS’s case, Poole J found that the bene昀椀ts of
proceeding outweighed the (signi昀椀cant) risks to RS,
and that, taking into account all the circumstances,
including the views of GH and others concerned
with his welfare, it was in his best interests for the
surgery to proceed. As he made a point of doing (for
di昀昀erent reasons) in the recent case of KP3, Poole J
emphasised that the buck stopped with him:
40. When choosing to take a course of action that
carries risk over a course of inaction, a decisionmaker may feel personally responsible for every
risk that then occurs. That may be especially so for
clinicians and family members closely connected
to the individual concerned. But they would have
been equally responsible for the consequences of not
acting. A decision-maker may feel a greater sense of
responsibility for the consequences of a decision to
act as opposed to a decision to do nothing, but for
the person who su昀昀ers the consequences there is little
di昀昀erence.
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42.2. Judges can hear evidence from key
witnesses, including independent experts,
scrutinised by experienced Counsel, in a formal
court setting to assist them to assess risks and
bene昀椀ts and to assess best interests.
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DECEMBER/JANUARY 2025-2026
