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 the values of legal practitioners and judges 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 health, welfare, and property and affairs. However, the nature of their participation, as well as what participation means, is ultimately determined by how legal practitioners frame cases as well as decisions 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 practices and procedures of legal advocates and judges.
The Judging Values project contains three work packages based on core questions of the project:
1. How do legal practitioners and judges invoke and apply values in framing and making 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 when making decisions under the MCA and why? Where do these values come from?
- How do legal practitioners and judges understand and interpret guidelines to help persons with disabilities participate in legal proceedings about their health, welfare, and property and affairs?
- 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 legal practitioners and 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 legal practice and judicial reasoning in mental capacity cases, particularly around the influence of values of different sources (moral, political, etc.)?
- Should judges be required to meet with persons who are the subject of legal proceedings and what is the purpose of such meeting?
3. What professional and policy guidelines ought to be implemented if ethical obligations to persons with disabilities appropriately fulfilled in legal practice and judicial 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 legal practice and 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
20 June 2022
Judging Values And Participation In Mental Capacity Law Conference
Is there something unique about being a lawyer or judge in the Court of Protection (CoP)? Could this uniqueness have something to do with the values that CoP professionals have? This conference will look at these questions, as well as key practical challenges for lawyers, participants, and decision-makers who are charged with applying the Mental Capacity Act 2005 in England and Wales. Drawing on the academic research conducted through the Judging Values and Participation in Mental Capacity Law project (including close to 60 in-depth interviews with CoP practitioners and retired judges), issues to be explored include:
- How values orient legal professionals in practising and judging in the CoP;
- The law and reality of considering P’s values in best interests decision-making;
- The challenges of effective participation in the CoP and why “P-centricity” is so hard to achieve in practice;
- How academic research and legal practice in the CoP can mutually and productively inform one another;
- Potential areas for training for CoP legal professionals;
- What might be learned from other international mental capacity regimes.
More information, and details on how to register can be found here
News, Outputs and Publications
24 May 2022
The ‘human element’ in the social space of the courtroom: framing and shaping the deliberative process in mental capacity law, has been published in Legal Studies: https://www.doi.org/10.1017/lst.2022.19.
15 November 2021
Researchers meet the training needs of specialist lawyers
Researchers on the AHRC-funded project, Judging Values and Participation in Mental Capacity Law, based at the ICPR, Birkbeck School of Law, have pioneered a training film for specialist lawyers who work in the Court of Protection, ‘Communication and Participation in the Court of Protection', now available on YouTube. The video, developed in association with leading charity VoiceAbility, utilises role-plays and roundtables with lawyers and people with learning disability and autism to demonstrate how to enhance communication and achieve better quality evidence for the court.
Dr Camillia Kong, Principal Investigator, said:
‘This video is the culmination of our empirical research which identified the urgent need for more specialist training for legal practitioners. It represents the importance of facilitating dialogue between academic research, experts with lived experience, and legal practitioners, in order to improve practice so that the voices of persons with learning disabilities and/or autism may be better heard.’
Sean Nightingale, VoiceAbility Speak Out Leader, who appears in the film alongside his colleagues Anne Hunt and Bill Jones said:
‘The film was about helping solicitors to support people with a learning disability or autism better. Being able to work and build trust with people with disabilities better than they might do already is really important, it may help people when solicitors are making decisions for them. If they can get to know the people themselves, it will help the person they are working with to trust them. If they get to know you and you feel you can trust them, it makes you feel you can talk to them. You need to trust them first.’
Anne Hunt said:
‘Part of the film is about people with a learning disability and or autism making a decision about moving out but their parents are against the idea and they can’t decide for themselves so they need to get solicitors involved. This is important to me because I wanted to show that people can think for themselves.’
And Bill Jones said this:
‘Any court is a scary place, especially for someone with a learning disability and/or autism, it’s somewhere they’re not familiar with, somewhere they would not normally go.
I felt it was important that we get across in the film that it can be scary, but not as scary as some people say it is and that you can have adjustments made if you need them. I hope it will make difference by giving people an idea of how solicitors and the Court of Protection work and that it will be okay once it’s over.’
Mat Culverhouse, partner at Irwin Mitchell solicitors and co-chair of the Court of Protection Practitioners’ Association said:
‘This film is an invaluable resource for Court of Protection practitioners at all levels, from those starting out in this field to those with many years of experience. This important project demonstrates the value of training based on rigorous research and learning from those with lived experience, and it is to be hoped that this video will be just the first of many future resources produced by the project team.
Professor Jessica Jacobson, Director of ICPR, commented:
‘This film, arising from the ground-breaking research project on mental capacity law, provides lawyers working in the Court of Protection with invaluable practical guidance and opportunities for reflection. It thus makes a substantial contribution to ICPR’s mission to inform and improve justice policy and practice through applied research.’
Andrew Spooner, Associate Solicitor, Head of Mental Capacity at Biscoes Solicitors said:
‘The video is the most important video on technical practice I have ever seen. It really conveys how to improve communication with a protected party in the Court of Protection and I think it is going to revolutionise practice, thank you again.’
Communication and Participation in the Court of Protection is now available on YouTube:
The Judging Values and Participation in Mental Capacity Law project involves a team of academics from Birkbeck College, University of Bristol, and University of Oxford and the project is funded by the Arts and Humanities Research Council.
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
22 October 2020
An Aide Memoire for a Balancing Act? Critiquing the ‘Balance Sheet’ Approach to Best Interests Decision-Making, Camillia Kong, John Coggon, Michael Dunn, Alex Ruck Keene. Medical Law Review, https://doi.org/10.1093/medlaw/fwaa027
28 June 2021
Coggon, J. and Kong, C. (2021) From Best Interests To Better Interests? Values, Unwisdom And Objectivity In Mental Capacity Law. Cambridge University Press.
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