The Place of Wishes and Feelings in Best Interests Decisions: Wye Valley NHS Trust v Mr B
| Date | 01 November 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12233 |
| Author | Lucy Series |
| Published date | 01 November 2016 |
to reassert itself as a means of shaping obligations, rather than simply discovering
and implementing them.94 However, any attraction such a development might
hold depends on its doctrines being clear, consistent and principled. Alas, that
is not the case here. Marks and Spencer has swept away the theoretical basis for
terms implied in fact without putting anything in its place.
The Supreme Court reached the correct decision on the facts of Marks and
Spencer. Given the length of the contract (some 70 pages), it would have been
very strange if the parties had left such a significant term to implication. But
this decision could have been reached in a more conceptually satisfying way if
the majority had followed Lord Hoffmann’s approach whole-heartedly.
Great things were initially prophesied for Belize: Lord Clarke MR thought
that it would be ‘as much referred to’ as Investors Compensation Scheme.95 It
will be a tremendous shame if it is left to languish in obscurity now. While not
substantially changing the law, it brought clarity and coherence to an area where
these were sorely lacking. If judgments are to be jettisoned simply because they
stimulate academic debate, there would be no law worth having. It is not clear
why Lord Neuberger felt the need to throw cold water over Belize, but it is to
be hoped that Lord Hoffmann’s incisive and helpful analysis will continue to
influence the courts regardless.
The Place of Wishes and Feelings in Best Interests
Decisions: Wye Valley NHS Trust vMr B
Lucy Series∗
In Wye Valley NHS Trust vMr B the Court of Protection decided that it was not in the
best interests of Mr B to receive amputation surgery against his will, notwithstanding that he
would die without the treatment. The judge met with Mr B in person and his best interests
decision placed significant weight on Mr B’s wishes and feelings. This case note considers this
influential case in the context of ongoing debate about the place of wishes and feelings in best
interests decisions under the Mental Capacity Act 2005. It considers the history of the best
interests principle, its interpretation by the Supreme Court in Aintree University Hospitals NHS
Foundation Trust vJames, ongoing debates about its compatibility with Article 12 of the United
Nations Convention on the Rights of Persons with Disabilities, and recent proposals by the
Law Commission for statutory amendments to the Mental Capacity Act.
INTRODUCTION
The Mental Capacity Act 2005 (MCA) codified the common law principle
that an act done or a decision made on behalf of an adult deemed ‘incapable’ of
94 It may be significant that another recent Supreme Court case, El Makdessi vCavendish Square
Holdings BV & Anr [2015] 1 WLR 1373, reaffirmed the traditional rule against penalties in the
face of arguments that the parties’ agreement ought to prevail.
95 n 34 above, 913.
∗School of Law and Politics, Cardiff University.
C2016The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(6) MLR 1090–1115 1101
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