Discretionary powers discussed in distinguished law lectureWednesday 25 November 2015
The use of discretionary powers in cases of welfare and best interest was discussed by Professor Sir Mark Hedley in his fourth public lecture.
Welfare and best interests: Public, personal or judicial values explored the tensions between autonomy and protection in a complex, multi-cultural society.
Sir Mark said: “We have seen that social values have become much more diverse in recent times, just as we have seen that judges may hold between them a diverse range of values.
“In consequence, when the court is considering the exercise of discretion, it will often be addressing at least three potentially competing sets of values: the values of society in so far as they can be discerned; the values of the family or families engaged in the particular case; and the judge’s own values, which are inevitably engaged.
“The law seeks the promotion of the autonomy of a protected person whilst at the same time granting powers to secure their protection. In that I think the law probably reflects the views of society generally. But however much we may want both, sometimes a choice has to be made.”
Sir Mark reflected on the merits and shortfalls of both a rule-based and discretionary approach.
He said: “A rule-based approach allows much greater certainty of advice to be given but may produce an unjust result in a given case. Whilst a discretionary approach may permit a just outcome in each case, it produces uncertainty which may provoke rather than quench dispute.
“The argument between the two will no doubt rumble on. The English tradition, at least in the field of family and mental capacity law, tends strongly towards the discretionary approach with the consequence that the Law develops incrementally on a case-by-case basis.”
In the final remarks, Sir Mark commented on the power society has put into the hands of judges and how the system will only continue to succeed if judges “receive (and deserve) the confidence and consent of the society in whose name they act”.