Guest post by Beverley Clough: Choosing the ‘lesser of two evils’ – the empty vessel of best interests?

“It is disappointing that the response from the judiciary thus far has been somewhat Nelsonian, and in many respects the judiciary have reasoned themselves into an impasse. In a fascinating extra-judicial article, ‘Protecting the rights of vulnerable and incapacitous adults – the role of the courts: an example of judicial law making’ (2014) CFLQ 26(1), Munby outlined the way in which the courts and judges have had an important role in developing the law in this context, and the direction of reasoning which has at times meant that judges have ‘backed themselves into a corner’, but also the way in which the judiciary have manoeuvred out of these corners. He ends by saying ‘the common law has shown a remarkable ability to adapt in dramatic ways over a very short period. Who can say what the future holds?’ It is hoped that the Supreme Court will engage in some clear reflection on these matters but also that they engage with the realities of the situation that a person deemed to lack capacity is placed in by this interaction between the legislative frameworks – the power relations that permeate this context, and the way in which decisions are made.”

The Small Places

We know that best interests decisions have to be made among the ‘actually existing options’, but what happens when those options are seriously constrained by resources or for other reasons? What if none of the ‘actually existing options’ seem desirable?  This is a question that has appeared in many Court of Protection cases and will soon be answered by the Supreme Court.  I’m delighted to host this guest post by Dr Beverley Clough, a lecturer at Leeds University, who considers these issues.


  • The Court of Protection has the power to make decisions on financial and welfare matters for people who are found to lack mental capacity under the Mental Capacity Act 2005.
  • The Mental Capacity Act says that decisions have to be made in that persons best interests.
  • Recent cases in the Court of Protection have shown that the court lacks the power to make local authorities provide particular services.
  • If…

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