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Judging Values and Participation in Mental Capacity Law

1
Institute for Criminal Policy Research, School of Law, Birkbeck College, 42 Store Street, London WC1E 7HX, UK
2
Centre for Health, Law, and Society, University of Bristol Law School, Bristol BS8 1QU, UK
3
Ethox Centre and Wellcome Centre for Ethics and Humanities, University of Oxford, Oxford OX1 2JD, UK
*
Author to whom correspondence should be addressed.
Received: 19 November 2018 / Revised: 23 January 2019 / Accepted: 24 January 2019 / Published: 1 February 2019
(This article belongs to the Special Issue Concerns, Contradictions and Reality of Mental Health Law)
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PDF [308 KB, uploaded 25 February 2019]

Abstract

Judges face a challenging task in determining the weight that ought to be accorded to the person (P)’s values and testimony in judicial deliberation about her capacity and best interests under the Mental Capacity Act 2005 (MCA). With little consensus emerging in judicial practice, incommensurable values drawn from divergent sources often collide in such cases. This paper outlines strict and flexible interpretations of the MCA’s values-based approach to making decisions about capacity and best interests, highlighting the problematic implications for the normative status of P’s values and the participatory role of P in judicial deliberations. The strict interpretation draws a false separation between ascertaining P’s values and the intrinsic value of enabling P’s participation in court proceedings; meanwhile, the flexible interpretation permits judicial discretion to draw on values which may legitimately override the expressed values of P. Whether in the ambiguous form of internal and/or extra-legal judicial values, these value sources demand further scrutiny, particularly regarding their intersection with the values held by P. We offer provisional normative guidelines, which set constraints on the appeal to extra-legal values in judicial deliberation and outline further research pathways to improve the justification around judicial decisions regarding P’s participation. View Full-Text
Keywords: mental capacity law; values; judicial deliberation; participation mental capacity law; values; judicial deliberation; participation
This is an open access article distributed under the Creative Commons Attribution License which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited (CC BY 4.0).
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Kong, C.; Coggon, J.; Dunn, M.; Cooper, P. Judging Values and Participation in Mental Capacity Law. Laws 2019, 8, 3.

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