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.

Inequitable Access to Transplants: Adults With Impaired Decision-Making Capacity: an article co-written by me, published in Transplant International in March 2022,  intended to prompt debate about strategies for non-discrimination, the developments of policies, as well as further research in this area.

Broad concepts and messy realities: optimising the application of mental capacity criteria: an article co-written by me, published in the Journal of Medical Ethics in July 2021, digging into how to make capacity assessments more granular and transparent.   An accompanying blog by the lead author, Dr Scott Kim, is here .

Should age matter in COVID-19 triage? A deliberative study; an article I have co-written, published in the Journal of Medical Ethics in March 2021, reporting upon a deliberative democracy study we undertook in the summer of 2020 as a collaboration between KCL and Ipsos Mori, exploring general public views in the UK on the role of age, and related factors like frailty and quality of life, in triage during the COVID-19 pandemic. 

Applying decision-making capacity criteria in practice: A content analysis of court judgments, an article I have co-written, published in PLOS ONE in February 2021, looking at the way in which the ‘functional test’ within the MCA is broken down into ‘capacity rationales’ in practice.  A shedinar about the article with the lead author, Dr Nuala Kane, can be found here.

Isolating residents including wandering residents in care and group homes: Medical ethics and English law in the context of Covid-19: an article I have co-written, published in January 2021 in the International Journal of Law and Psychiatry investigating the lawfulness of isolating residents of care and group homes during the COVID-19 pandemic.

Best interests, wishes and feelings and the Court of Protection 2015-2020’ Journal of Elder Law and Capacity [2020] Winter 35, looking at the trends in the case-law in situations where the person’s wishes and feelings can be identified.

A new kind of paternalism in surrogate decision-making? The case of Barnsley Hospitals NHS Foundation Trust v MSP: a co-written article in the Journal of Medical Ethics (November 2020) examining the implications of the move towards identification of wishes and feelings as the central determinant of best interests in the medical treatment context.   For a discussion about the issues with my co-author, Dr Scott Kim, see here.

An Aide Memoire for a Balancing Act? Critiquing The ‘Balance Sheet’ Approach to Best Interests Decision-Making: a co-written article (October 202o) looking at how the balance sheet is used, and why it may not capture the concerns that are actually in play.

Dementia, Sexuality, and the Law: The Case for Advance Decisions on Intimacy: a co-written article in The Gerontologist (September 2020), proposing an instrument known as the Advance Decision on Intimacy, in pursuit of the concept of precedent autonomy, to empower individuals to make decisions about how they would wish to express their sexuality at a material time in future when they would have lost the capacity to consent to such acts.

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.

The PACT advance decision-making template: preparing for Mental Health Act reforms with co-production, focus groups and consultation: a co-written article looking at the appetite for (and concerns about) advance decision-making in the mental health context, including also the template ‘PACT’ document being used to support individuals with bipolar disorder in a project in South London. 

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.

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.

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).”

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 February 2022 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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