Articles and papers

On this page you can find links to a selection of articles and papers that I have written in the field of mental capacity law.

Making ordinary decisions in extraordinary times: an article in the British Medical Journal (August 2020) I co-wrote reflecting on the first wave of the pandemic from the perspective of a Covid-19 ethics working group at a large London teaching hospital has now appeared .  Its central argument is that a lack of detail in national decision support guidelines led to fear-driven anticipatory triage during the first wave of the pandemic, and it sets out ways in which support for ordinary decision-making can and should be increased.

Advance Decisions: Getting it Right: an updated (June 2020) version of a paper originally written in 2012 looking in some detail at the inner workings of the provisions of the MCA 2005 relating to advance decisions.

Capacity in the time of Coronavirus, an article published in early April 2020 in the International Journal of Law and Psychiatry’s Special Issue: “Mental health, mental capacity, ethics and the law in the context of Covid-19 (coronavirus).”  The abstract is as follows:

In the course of a few short weeks, many of the established legal frameworks relating to decision-making in England & Wales in respect of those with impaired decision-making capacity have been ripped up, or apparently rendered all but unusable. Although the Mental Capacity Act 2005 itself has not been amended, the impact of other legislation (especially the Coronavirus Act 2020) means that duties towards those with impaired decision-making capacity have been radically changed. This article reflects the experience of a practising barrister in England & Wales grappling with the impact of COVID-19 upon the Mental Capacity Act 2005 across a range of fields in the weeks after the world appeared to change in mid-March 2020.

Isolation of patients in psychiatric hospitals in the context of the COVID-19 pandemic: An ethical, legal, and practical challenge: a co-written article in the International Journal of Law and Psychiatry which appeared in May 2020. It is also available (for free) from ResearchGate in pre-print version here.

Taking capacity seriously: 10 years of capacity disputes before the Court of Protection: an article I have co-written in the International Journal of Law and Psychiatry, which outlines the history of the functional model in England and Wales, and the development of the Court of Protection. It also presents empirical and case-based study of 40 published cases of capacity disputes presented to the Court of Protection, or to the Court of Appeal on appeal from the Court of Protection, during the first ten years of its existence.

Discussion paper: Deprivation of Liberty, Cheshire West and the CRPD: a discussion paper looking at whether there may be room in which to revisit Cheshire West to capture (in a principled fashion) what appears to be an instinctive difference between: (a) the position of a person who is confined, cannot consent to that confinement, but where there appears to be no element of coercion or the deployment of measures against their will; (b) the position of person who is confined, cannot consent to that confinement, but is subject coercion.  This approach was endorsed in 2018 by the Joint Committee on Human Rights in their report upon the Deprivation of Liberty Safeguards.

When wishes and feelings collide: an Elder Law Journal article from the summer of 2017 co-written with two KCL students, addressing the position where a person’s known past wishes appear to clash with their current presentation.

With and without ‘best interests’: an article co-written with Adrian Ward for the inaugural issue of the new International Journal of Mental Health and Capacity Law, comparing the MCA and the Scottish Adults with Incapacity Act through the prism of Article 12 CRPD.

Powers, defences and the ‘need’ for judicial sanction: a pre-publication version of the article that appeared in the Elder Law Journal in the summer of 2016 as to the role of s.5 MCA 2005 and when, and why, public authorities (in particular local authorities) have to come to the Court of Protection.  An updated version from June 2019 can be found here.

Reconfiguring Contract Law in light of the CRPD: a Discussion Paper: a paper written for the ERC Voices project workshop held in Galway on 18 November 2016 on some of the ways forward as regards re-thinking contract law in light of the CRPD.

Litigation Friends or Foes? Representing ‘P’ in the Court of Protection: an article which appeared in the Medical Law Review (co-written with Neil Allen and Peter Bartlett) looking critically at the history and future of litigation friends.

Towards Compliance with CRPD Art. 12 in Capacity/Incapacity Legislation across the UK: a report from July 2016 co-written with a number of collaborators under the auspice of Professor Wayne Martin’s Essex Autonomy Project, assessing compliance between the MCA, the MCA (NI) and the Adults with Incapacity (Scotland) Act and the CRPD.

With thanks to Jordan Publishing for permission to reproduce this, my article on the place of wishes and feelings in best interest decision-making appeared in the Elder Law Journal (co-written with Cressida Auckland, a DPhil candidate at the University of Oxford).    I made reference to it in my comment on the inspirational Wye Valley case and it may be useful for training purposes in terms of trying to understand what it means actually to put yourself in the position of P.

A brief guide to carrying out capacity assessments: this guidance note, written with my fellow Newsletter editors and Nicola Kohn, is aimed at social workers and those working in front-line medical settings.  It attempts to distil the core principles of the law relating to capacity contained in the MCA 2005, and to provide practical guidance as to how to complete robust capacity assessments.

A brief guide to carrying out best interests assessments: this guidance note, written with my fellow Newsletter editors, is aimed at social workers and those working in front-line medical settings.  It attempts to distil the core principles of the law relating to best interests contained in the MCA 2005, and to provide practical guidance as to how to complete robust best interests assessments.

Judicial deprivation of liberty authorisations: this guidance note, this guidance note, written with my fellow Newsletter editors,provides updated guidance as to the process for applying for judicial authorisation of deprivation of liberty, including the requirements set down in the COP DOL11 form and the judgments of Charles J in Re NRA and Re JM.

Addressing the Conundrum: the MCA or the MHA?: The wilds of Schedule 1A to the MCA 2005 are explored in this 2015 article to which I contributed under the lead authorship of Dr Oluwatoyin A Sorinmade.  The published (and graphically polished) version appeared in Clinical Risk and permission to Sage to reproduce the submitted article is gratefully acknowledged.

Acting as a Litigation Friend in the Court of Protection: guidance that I was commissioned to write by the Department of Health for IMCAs, other advocates and family members/friends of individuals lacking capacity to enable them to consider acting as a litigation friend for ‘P’ in the Court of Protection.   Note that since this was written in October 2014, a number of changes have taken place, including the introduction of “Rule 3A representatives,” and this guidance should therefore be read subject (in particular) to the decision of Charles J in Re NRA [2015] EWCOP 59.

The Hague Convention 5 years on: a paper from February 2014, drawing upon work that I did at the Institute of Advanced Legal Studies leading to my co-authored book on the International Protection of Adults, on the Hague Convention on the International Protection of Adults 2000, addressing some of the core concepts (and problems) that arise in the context of the Hague Convention as it is – mostly – implemented in England and Wales by Schedule 3 to the Mental Capacity Act 2005.

Inherent Jurisdiction Note: a paper which I delivered initially to a conference on Action on Elder Abuse in 2013 about the scope of the High Court’s inherent jurisdiction to protect vulnerable adults.   In it, I examine, in particular, the lessons that we can learn from the approach adopted in Scotland under the Adult Support and Protection (Scotland) Act 2007, and argue that the High Court can properly grant relief under the inherent jurisdiction that matches the relief available in Scotland.   This is of particular importance given the failure to give social workers the ability to apply for a power of entry to assist in the discharge of their obligations under the Care Act to carry out safeguarding inquiries.

Tying ourselves into (Gordian) knots?: a (very long) paper from September 2013 that I wrote prior to the hearing of the appeal against the decision of the Court of Appeal in Cheshire West and P and Q in which I analyse the law relating to deprivation of liberty and argue that the proper approach to take is to ask whether the person is free to leave.   This paper was cited to the Supreme Court by the interveners, the AIRE Centre (an NGO which I would have called marvellous even had they not made reference to it).   I will keep it here primarily as a period piece and so that readers can judge the extent to which I got it right…

Statutory Wills and Testamentary Capacity Update: a paper from 2013 in which I discuss the relationship between the test for testamentary capacity at common law and that which applies under the MCA 2005, as well as some of the forensic challenges which arise when trying to assess capacity retrospectively.

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