In Mental Capacity case law, we often encounter judgements that warn us against the ‘protection imperative’ or adopting a ‘paternalistic approach’ when it comes to supporting vulnerable people. But what do these phrases really mean?
In this blog, we look at the broad definitions of the protection imperative and the paternalistic approach, providing examples of cases that explain these terms in context, and how they apply to professional practice.
Understanding the protection imperative
In simple terms, the protection imperative is the innate feeling to want to protect other human beings, especially those in a vulnerable position.
While this desire to protect others can generally be seen as a positive thing, we must be careful to consider context. When people take the protection imperative to its extremes, the desire to protect can actually cause emotional and physical harm – disabling vulnerable people, rather than enabling them.
In the context of the MCA (2005) we must always ensure that we are correctly assessing a person’s capacity, while also respecting their right to make what we (or others) might deem to be an ‘unwise decision’. This means working with the individual to empower them to make their own decisions, to support them in weighing up the risks, without obstructing their rights.
However, if a person is found to lack capacity for a specific decision, then the Best Interest Decision should not seek to override their pre-existing thoughts, wishes and values around that decision. Rather, it should seek to support them in the least restrictive way from the viable options available.
Dangers of the paternalistic approach
While the protection imperative is an innate human desire to want to protect human life from harm, the paternalistic approach is similar, but rather views vulnerable people much like a parent might view a child.
Again, while the idea of nurturing and protecting those who we perceive to be more vulnerable than ourselves may be seen to be a generally good thing to do in principle, we do need to be mindful of what impact such an approach can have on an individual’s rights. It is a mistake therefore to view ourselves as ‘parent’ to a vulnerable ’child’. Rather, it is our role to support all adults – whether they have capacity or not – to empower and support their rights and their voice. We should not therefore put unnecessary or disproportionate restrictions on them that could undermine their autonomy and potential for growth.
Examples from the Court of Protection
- CC v KK and STCC (2012), EWCOP 2136
- 25. ‘In assessing the evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians and professionals treating and working with, P. In PH, I drew attention to a potential risk, identified by Ryder J in Oldham MBC v GW and PW [2007] EWHC136 (Fam) [2007] 2 FLR 597, another case brought under Part IV of the Children Act 1989, that the professionals and the court may be unduly influenced by what Ryder J called the “child protection imperative”, meaning “the need to protect a vulnerable child” that, for perfectly understandable reasons, may influence the thinking of professionals involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.’
- A local Authority v TZ (No. 2) (2014) EWHC 973
- 41.’ In reaching these conclusions as to capacity, I have reminded myself, again, of the need to avoid what could be called the vulnerable person’s protective imperative – that is to say, the dangers of being drawn towards an outcome that is more protective of the adult and thus fail to carry out an assessment of capacity that is detached and objective. I do not consider that I have fallen into that trap in this case.’
- Blackpool Teaching Hospitals NHS Foundation Trust v GWS & Ors (Capacity) [2025] EWCOP 23 (T3)
- 126 ‘In reaching this conclusion I am acutely aware of the presumption of capacity, to consider whether any further support can be made available to GWS, the need to avoid the protection imperative or for any conclusion to be outcome led. The evidence demonstrates GWS has continued to be given support with his advocate and there being more consistency in those who speak to him. I do not consider at this stage any further support can be provided. In my judgment, taking the evidence as a whole, I have reached the conclusion, on the balance of probabilities, that GWS is unable to use and weigh the relevant information in relation to the decisions set out above. Even making allowance for the fact that it is not necessary for him to understand all the detail of the information there are salient factors here which involve serious and long-term implications for GWS that he is not using and weighing in reaching his decision.’
To draw these thoughts to a close, it would be wise to return to Mister Justice Munby, whose judgement captures these two concepts most powerfully…
- A Local Authority v MM and KM (2007) EWHC 2003
- 120. ‘A great judge once said, “all life is an experiment,” adding that “every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge” (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?’
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