Taking capacity seriously: ten years of capacity disputes before the Court of Protection

One of the first fruits of the Wellcome-funded Mental Health and Justice project has just been published in the International Journal of Law and Psychiatry. An article I have co-written with Nuala Kane, Gareth Owen and Scott Kim, it presents a review, in two parts, of the first ten years of the Court of Protection.  The first part outlines the history of the functional model of capacity in England and Wales, and the development of the Court of Protection. The second part presents an empirical and case-based study of 40 published cases of capacity disputes determined during the first ten years of its existence.

Whilst you should, of course, read the whole article, for those in a real rush, we conclude that whilst the Court of Protection is still on a learning curve, its work provides a powerful illustration of what taking capacity seriously looks like, both inside and outside the courtroom. The implications for judges, lawyers and psychiatrists that can be drawn from the study are generalisable to other comparable socio-legal frameworks in which mental capacity or competence plays a role and is likely to do so for the foreseeable future.

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