Judging Values and Participation in Mental Capacity Law
Judging Values and Participation in Mental Capacity Law is an interdisciplinary research project funded by the Arts & Humanities Research Council (AHRC), exploring how judges and their values influence the principles and procedures in mental capacity law, particularly in deciding whether persons with disabilities participate in legal proceedings about capacity and best interests.
Current domestic legislation under the Mental Capacity Act 2005 (MCA) in England and Wales, as well as human rights frameworks, such as the United Nations Convention on the Rights of Persons with Disabilities (CRPD), seek to involve and empower persons with disabilities to participate in decisions about their care and treatment. However, the nature of their participation, as well as what participation means, is ultimately determined by individual judges.
The purpose of this project is to work towards policy initiatives and professional development tools which help to achieve justice for persons with disabilities, fostering their participation in legal proceedings around capacity and best interests through a better understanding of how values influence and shape the deliberation of judges.
The Judging Values project contains three work packages based on core questions of the project, combining the interdisciplinary perspectives of socio-legal studies, jurisprudence, and philosophy.
1. How do judges invoke and apply values in legal decisions about effective participation, capacity, and best interests?
Legal analysis and empirical investigation will be used in this work package to explore how judges currently make decisions under the MCA. More specific questions we probe include:
- What values are important for judges in making decisions under the MCA and why? Where do these values come from?
- How do judges understand and interpret guidelines to help persons with disabilities participate in legal proceedings about their care and treatment?
- What aspects of the justice process support or prevent effective participation of the person who is the subject of legal proceedings?
2. What kind of normative framework will help judges fulfil obligations to persons with disabilities in accordance with the empowering ethos of the MCA and Articles 12 and 13 of the CRPD?
This work package probes the philosophical basis of broader ethical obligations owed to persons with disabilities in order to realise their effective and just participation in legal proceedings within mental capacity law. We examine questions such as:
- What are the ethical and legal obligations owed to persons with disabilities as specified under the MCA and CRPD? What does it mean to show appropriate respect to them within legal proceedings?
- What normative criteria should guide judicial reasoning in mental capacity cases, particularly around the influence of values of different sources (moral, political, etc.)?
- In which contexts should judges be required to meet with persons who are the subject of legal proceedings?
3. What professional and policy guidelines ought to be implemented if ethical obligations to persons with disabilities appropriately fulfilled in judicial practice and deliberation?
This work package will develop practicable but ethically grounded professional development tools and policy papers to improve practice and procedures for legal advocates and judges around the participation of persons with disabilities in mental capacity law. Core questions of our work here include:
- What practical solutions and policy change can be offered within the MCA statutory framework, as well as other international jurisdictions?
- What are the practical challenges to implementing these procedural and policy changes to better fulfil obligations owed to persons with disabilities and what mechanisms need to be in place in order to overcome them?
- What procedures and professional training tools will encourage greater transparency about the role of values in judicial deliberation within mental capacity law?
- Phillippa Ashcroft Head of Policy and Development, VoiceAbility Advocacy
- Richard Huxtable Professor of Medical Ethics and Law, University of Bristol
- Patricia Rickard-Clarke Independent Chair of the National Safeguarding Committee and chairwoman of the National Advisory Committee of Support & Advocacy Service for Older People (SAGE)
- Stephen Latham Director, Yale Interdisciplinary Center for Bioethics
- Denzil Lush Former Senior Judge
- Sumytra Menon Senior Assistant Director, Centre for Biomedical Ethics, Yong Loo Lin School of Medicine, National University of Singapore
- Cameron Stewart Professor of Law, Health and Ethics, University of Sydney
21 February 2019
Our project position paper, Judging Values and Participation in Mental Capacity Law is now published in Laws 2019, 8(1), as part of the special issue, Concerns, Contradictions and Reality of Mental Health Law.
Camillia’s paper, Constructing female sexual and reproductive agency in mental capacity law, has been published in IJLP, as part of the special issue, Gendering Mental Health and Capacity Law https://www.sciencedirect.com/science/article/pii/S0160252719300925
Penny’s article, Vulnerable Adults in the Court of Protection, has been published in Counsel magazine. https://www.counselmagazine.co.uk/articles/vulnerable-adults-in-the-court-of-protection
Institute for Criminal Policy Research
School of Law
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London WC1E 7DB