WEH/Ethox Seminar: An Aide Memoire for a Balancing Act? Arguing against the ‘Balance Sheet’ Approach to Best Interests Decision-Making for Adults and Children
Tuesday, 21 April 2020, 11am to 12.30pm
This seminar will be held by video conference through Bluejeans. Please email firstname.lastname@example.org for the link to the meeting.
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 as a tool to enable judges to quantify, compare, and calculate the different options at play. However, in recent years, judges have expressed increasing criticism towards the substance and practical function of the balance sheet approach. I argue that such disagreement is practically and normatively significant in two ways. First, it reveals growing judicial 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.