Legal capacity before the English courts – a reading list

Introduction

This reading list contains resources which are either open access, or to which I can give access on request).  The majority of these articles are ones I have written/co-written, which is partly down to narcissism, partly down to the fact that they are amplifying how I understand the law in England & Wales, and partly down to the fact that – depressingly – much research relating to the law and practice in England & Wales in this area is behind paywalls.

For those wanting an easy way into understanding the core provisions of the Mental Capacity Act 2005 (the main statute governing mental capacity in England & Wales), the ‘shedinars’ on my website may be useful, covering as they do key concepts in 20 minute presentations.    

For an insight into how judges in the Court of Protection do their work, I strongly recommend the lectures by Sir Mark Hedley, a former judge of the Court of Protection, available here.

To see the Court of Protection in action, and read thoughtful blogs by observers of cases I recommend you have a look at the work of the Open Justice Court of Protection.

The concept of capacity in England & Wales

Ruck Keene, A. R., Kane, N. B., Kim, S. Y., & Owen, G. S. (2019). Taking capacity seriously? Ten years of mental capacity disputes before England’s Court of Protection.  International journal of law and psychiatry, 62, 56-76.  This article outlines the history of the functional model in England and Wales, and the development of the Court of Protection. It also presents an empirical 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.

Kane, N. B., Ruck Keene, A., Owen, G. S., & Kim, S. Y. (2021). Applying decision-making capacity criteria in practice: A content analysis of court judgments. PloS one, 16(2), e0246521.  This article looks at the way in which the ‘functional test’ within the MCA is broken down into ‘capacity rationales’ in practice.  A shedinar discussion I have done about the article with the lead author, Dr Nuala Kane, can be found here.

Both of the articles above are products of the Mental Health & Justice Project, a Wellcome-funded project running from 2017-2022.   The project included a workstream on contested capacity, leading to research-based guidance on the assessment of capacity, available here.

Best interests  

Auckland, C. C., & Ruck Keene, A. (2015). More presumptions please? wishes, feelings and best interests decision-making. Elder Law Journal, 5(3), 293-301.  This article looks at the case-law of the Court of Protection from its outset to 2015, examining whether a de facto presumption in favour of following the person’s wishes and feelings could be identified.

Ruck Keene, A. and Friedman, M. (2020). Best interests, wishes and feelings and the Court of Protection 2015-2020. Journal of Elder Law and Capacity, Winter, 35, 31-53, looking at the trends in the case-law in situations where the person’s wishes and feelings can be identified.

Ruck Keene, A. R., & Ward, A. D. (2016). With and Without ‘Best Interests’: the Mental Capacity Act 2005, the Adults With Incapacity (Scotland) Act 2000 and constructing decisions. International Journal of Mental Health and Capacity Law, (22), 17-37.  This article, co-written with Adrian Ward, a Scottish lawyer, compares the approaches under the MCA and the Scottish Adults with Incapacity Act, and may be useful for those primarily familiar with the latter in terms of comparing the two pieces of legislation.

Kim, S. Y., & Ruck Keene, A. R. (2021). A new kind of paternalism in surrogate decision-making? The case of Barnsley Hospitals NHS Foundation Trust v MSP. Journal of Medical Ethics, 47(12), e81-e81. This article looks at the implications of the move towards identification of wishes and feelings as the central determinant of best interests in the medical treatment context.   This article is behind a paywall, but can be provided upon request.  For a discussion about the issues with my co-author, Dr Scott Kim, see here.

Ruck Keene, A., Bartlett, P., & Allen, N. (2016). Litigation friends or foes? Representation of ‘P’ before the Court of Protection. Medical Law Review, 24(3), 333-359.  This article looks at the way in which the subject of proceedings before the Court of Protection – known as ‘P’ – is represented in cases where they are considered not to have capacity to conduct the proceedings themselves.

Decision-making outside the Court of Protection

Ruck Keene, A. (2016). Powers, Defences and the Need for Judicial Sanction. Elder Law Journal, 244.  This article looks at the role of s.5 MCA 2005, which provides operative mechanism by which most decisions relating to care and treatment of those with impaired decision-making capacity are made.  Section 5 is a distinctive feature of English law, and explains why (at least in relation to health and welfare matters), legal ‘incapacitation’ does not feature in England & Wales in the same way as it does in many jurisdictions, especially civil law jurisdictions.   Nb the version hyperlinked to here is an updated version from 2022.

The findings of the Everyday Decisions project, led by Professor Rosie Harding, are invaluable for seeing what supported decision-making does (and does not) look like in practice in England & Wales.

Advance decision-making

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.

Ruck Keene, A., Cooper, R., & Hobbs, T. (2017). When past and present wishes collide: the theory, the practice and the future. Elder Law Journal, 132. This paper addresses the position where a person’s known past wishes appear to clash with their current presentation.

The MCA and the CRPD

Bartlett, P. (2020). At the interface between paradigms: English mental capacity law and the CRPD. Frontiers in Psychiatry, 881.  A extremely helpful overview of the key tension points by an astute observer of both.

The Essex Autonomy Project, has led on work both within England, and across the four jurisdictions of the United Kingdom, looking in detail at both the domestic legislation and what the CPRD actually requires.  I am a research affiliate of the Project and contributed to the two major reports that it has produced, available here.

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