Hidden Law-makers: Uncovering ‘tiers of invisibility’ in the law on best interests

by Suzanne Doyle Guilloud, Senior Research Associate, University of Bristol Law School

Courtroom by Al Arthur

Since November 2018, BABEL (‘Balancing Best Interests in Healthcare Ethics and Law’), a joint Wellcome Trust funded project between the Centre for Ethics in Medicine (CEM) and the Centre for Health, Law, and Society (CHLS), has been researching the nature and purpose of the concept of ‘best interests’ as it applies to both adults and children deemed to lack decision-making capacity in healthcare matters in England and Wales.

CHLS members in the law workstream of the BABEL team – Professor Judy Laing, Dr Sheelagh McGuinness and Dr Suzanne Doyle Guilloud – have spent the first phase of the project mapping the development of the law in this area, from the parens patriae jurisdiction up to its modern-day counterpart – the inherent jurisdiction, as well as the Mental Capacity Act 2005 (MCA) and the Children Act 1989. This analysis has revealed that despite a long history of judicial intervention where it is determined that a decision must be made for a person regarding their medical treatment, the norms which have applied to such cases have varied, changed and posed as many questions as they answered.

In the context of adults, particular questions are raised regarding an apparent judicial delegation to clinicians prior (and arguably even after) the enactment of the MCA. Further, the weight the law can and does give to the wishes and feelings of the individual the subject of the legal proceedings – particularly within the confines of a statutory framework which requires cognisance to be taken of other, ‘objective’ factors – is unclear, despite the Supreme Court ruling in Aintree in 2013. The law applicable to children and medical decision-making is just as full of uncertainty. A number of questions have arisen: How real is the recognition of Gillick competence (i.e. the ability of a child under 16 years of age to provide consent to medical treatment and to therefore avoid having a decision made for them in their best interests) when the standard of competence is placed as high as it currently by the courts? How has the apparent infiltration of MCA norms into proceedings concerning children come about and what are its implications? What impact does the increasing emphasis on mediation in cases of clinician/parent disagreement have on the decision to litigate and the types of cases which come before the courts, particularly considering the relative power imbalances between the parties? The literature reviews which exposed these questions are now being shaped into academic articles.

In seeking to interrogate these matters in a holistic manner, the CHLS research team plans to adopt a ‘hidden law-makers’ approach to the empirical phase of the project. The concept of hidden law-making in medical law comes from Montgomery, Jones and Biggs’ 2014 article on the subject. It is based on the contention that ‘tiers of relative invisibility’ exist within law-making. The authors note:

At one end of the spectrum lies Parliament; in its capacity as the legislature it is the most visible lawmaker. Nonetheless, there are some ‘hidden’ aspects to the development of legislation, including the role of democratic lobbying. … Our analysis has shown that law-makers demonstrate a desire to secure democratic as well as constitutional legitimacy, and suggests that such a wider context is integral to providing a satisfactory account of the proper approach to law-making … (p. 374-375)

Within this theory of law-making, judges are ‘partially hidden law-makers’, in that although they engage in ‘explicit judicial law-making’ by setting out written judgments on the facts of specific cases, it is clear that ‘some judges appear keener than others to push the law in particular ways, or directions’, going contrary to a narrative of judges as ‘reluctant’ law-makers. (p. 375) There are also ‘intermediate authorities’ with defined legal roles, such as the professional medical bodies, but ‘the processes by which they develop legal norms are not necessarily transparent’. How individual litigants themselves engage with the proceedings, with some having been ‘chosen’ by an organisation or interested party as ‘good’ cases which form part of a wider campaign, which itself then contributes to legislative shifts, is an aspect of law-making which has also gone underexamined. A frequently unrecognised factor in the development of the law is the legal profession itself, with both counsel and solicitors contributing to the formation and evolution of the law due to a concentration of expertise whereby a limited number of lawyers are involved in the development of a particular area of the law. Linked to this, the recurrent role of the Official Solicitor (and counsel instructed to act on its behalf) has seen that office involved in codifying practice in relation to these types of cases, as well as arguably indirectly shaping the substantive law itself by way of practice notes. (p. 360-367)

In order to ‘excavate’ these processes and their impact on the development and application of the law on best interests, the CHLS team will, in the first phase of its qualitative work, conduct a series of interviews with individuals who have been identified as key to the development of the law based on the literature reviews. These will include barristers and solicitors, representatives from the Office of the Official Solicitor, as well as expert witness that recur throughout core judgments in this area.

The identification of relevant key actors will be aided by applying a ‘case biography’ method to certain decisions. This approach seeks to map the ‘life’ of a case – its history and intersections – in order to expose ‘extra-legal’ stories and influences, thereby enhancing our understandings of the meanings of cases and their context. (Jones and Montgomery, 2020)

In the second part of the project’s empirical phase, a number of ‘witness seminars’ will be held. A form of oral history collection, these seminars are designed to bring together individuals who were involved in a key moment or process in the development of the law and to engage them in facilitated recollection, discussion and debate, either as speakers in roundtable reflections or as members of the audience. Individuals who have participated in the interview phase may also be invited to take part in these seminars.

In engaging in this ‘hidden law-makers’ approach, it is hoped that the ‘invisible’ aspects surrounding the development of the concept of ‘best interest’ will be incorporated into our analysis of this area of the law and, in doing so, provide a more complete understanding of its nature, its operation, and its future.

The law workstream’s empirical phase will begin in Autumn 2021. For more information, please contact Dr Suzanne Doyle Guilloud at suzanne.doyleguilloud@bristol.ac.uk.

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