Search

The issue of when and how disabled people can be lawfully deprived of their liberty is a major contemporary challenge for mental capacity law. People who lack capacity to consent to treatment that deprives them of their liberty must have access to safeguards to protect their rights under Article 5 ECHR. The current Deprivation of Liberty Safeguards are widely considered to be unfit for purpose, and a replacement scheme, the ‘Liberty Protection Safeguards’ (LPS) were proposed by the Law Commission of England and Wales in 2017. These safeguards were legislated for in 2018/19 in the Mental Capacity (Amendment) Act and are expected to be implemented in 2022. At the time the reforms were being debated in Parliament, multiple stakeholders expressed serious reservations about the proposals, some going so far as to claim that they are not ‘good law’. In this paper, I evaluate to what extent the LPS is (or has the potential to be) ‘good law’, drawing on two contrasting conceptual frameworks to guide that analysis: Bingham’s (2007) sub-principles of the rule of law; and the capabilities approach developed by Sen and Nussbaum (among others). I argue that despite the technical problems with the legislation that caused such concern during its passage through parliament, if the implementation process is grounded in a strong social justice conceptual frame, the LPS has the potential to be a positive legal reform.

The impact of the COVID-19 pandemic on the UK residential social care sector has been immense and tragic. Elderly, vulnerable and frail individuals living in residential care settings who should have been ‘shielded’ from the virus have died in disproportionate numbers. There are multiple and overlapping reasons for the very high rates of COVID-19 infection and death in residential adult social care settings. Some are immediate policy decisions relating to the management of the pandemic including to discharge older people from NHS hospitals into residential and nursing homes without a negative COVID-19 test result, and to prioritise the supply of (scarce) Personal Protective Equipment (PPE) to NHS providers. Others are endemic to the regulation of residential and nursing care, including the financial models that allow private equity firms to make significant profits while local authority funded placements pay at below cost, family members are required to pay care ‘top up’ fees, and self-funded residents are expected to cross subsidise those funded by the state. This chapter argues that a new model for adult social care, which focuses on fairness rather than profit is the only way to create a stable, safe and sustainable social care sector for the future.

This chapter draws attention to the ways in which the study of legal consciousness can provide added depth to studies of administrative justice. Perhaps surprisingly, given the prevalence of the former, it has yet to have much impact on the field of administrative justice. Drawing attention to the state of the art in legal consciousness studies, as well as those studies which do explore the interaction between legal consciousness and administrative justice, the chapter considers the possibilities raised and issues which have been addressed. The chapter develops its argument about the significance of the interaction by analysing the Ken Loach film I, Daniel Blake, arguing that cultural artefacts themselves can hold clues as to legal consciousness. Through that analysis, the chapter explores themes of systemic injustice, resistance and justice seeking in the interactions between the film’s protagonist and the administrative machinery of the welfare state.

Building on Bakhtin’s work on discourse, this article uses the concept of polyphony to explore capacity law praxis. Drawing on everyday interaction about power of attorney, we demonstrate how legal, lay and medical understandings of capacity operate dialogically, with each voice offering distinct expressions of legality. Analysing lay and medical interactions about Lasting Power of Attorney – the legal authority to make decisions on behalf of a person who loses the mental capacity to make their own decisions – we argue power of attorney holds a ‘polyphonic legality’. We argue that legal concepts (like power of attorney) are constructed not solely through official law but through dialogic interaction in their discursive fields. We suggest ‘polyphonic legality’ offers an innovative approach to understanding how law works in everyday life, which is attentive to the rich texture of legality created by and through the multiple voices and domains of socio-legal regulation.

SummaryStatutory wills are made under the Mental Capacity Act 2005 (MCA) for persons who lack testamentary capacity. Mental health practitioners are likely to be familiar with many of the provisions of the MCA and the test for testamentary capacity. However, they may not have encountered statutory wills. This article explains the procedure for applying for a statutory will, including the role of medical practitioners. Salient legal cases are summarised to highlight the difficulties in applying a best interests framework for decision-making in the context of statutory wills. Finally, this article considers how the United Nations Convention on the Rights of Persons with Disabilities (CRPD) might affect not only on statutory wills, but also the wider provisions of the MCA.Learning Objectives• Be able to explain statutory wills and the application procedure to a patient or carer• Understand the differences between the test for testamentary capacity (as established inBanks v Goodfellow(1870)) and assessing capacity under the MCA• Appreciate how the CRPD might affect the decision-making process, not only for statutory wills but for all decisions made under the MCA

Consent is generally required for research and sharing rich individual-level data but presents additional ethical and legal challenges where participants have diminished decision-making capacity. We formed a multi-disciplinary team to develop best practices for consent in data-intensive dementia research. We recommend that consent processes for research and data sharing support decision-making by persons with dementia, protect them from exploitation, and promote the common good. Broad consent designed to endure beyond a loss of capacity and combined with ongoing oversight can best achieve these goals. Persons with dementia should be supported to make decisions and enabled to express their will and preferences about participation in advance of a loss of capacity. Regulatory frameworks should clarify who can act as a representative for research decisions. By promoting harmonization of consent practices across institutions, sectors, and countries, we hope to facilitate data sharing to accelerate progress in dementia research, care, and prevention. ispartof: ALZHEIMERS & DEMENTIA vol:14 issue:10 pages:1334-1343 ispartof: location:United States status: published

The right to equal recognition before the law, protected by Article 12 of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD), mandates the use of supported decision-making practices to enable disabled people, particularly those with intellectual and/or psychosocial disabilities, to enjoy their legal capacity. Finding ways to translate this theoretical mandate into practice poses a number of particularly challenging socio-legal issues, which this research seeks to address. The English Mental Capacity Act 2005 (MCA) sets out a right to support with decision-making (s.1(3)), underpinned by a presumption of capacity (s.1(2)). Qualitative interviews with intellectually disabled people, their supporters, and care and support professionals were undertaken to explore how disabled people make decisions in their everyday lives, the kinds of support they need, and the strategies for supported decision-making used in practice. Analysis of these interviews suggests that a range of supported decision-making techniques have been developed in practice and are effective in supporting everyday preferences and some life choices. Paradoxically, it appears that as decisions become more complex, the support available to disabled people reduces. Specifically, much less support is available for more difficult decisions around finances, healthcare and legal matters. We argue that the reasons for this are due to a web of regulatory, social and policy issues. We conclude that implementing the right to enjoy legal capacity through supported decision-making will require a combination of regulatory reform, social change and policy amendment.

This chapter explores how heteronormativity, normative ordering of society to correspond with heterosexuality, shapes experiences of dissolution of formally recognized same-sex relationships. We present qualitative data from in-depth interviews with both clients and solicitors with direct experience of civil partnership dissolution. Drawing on insights from legal-consciousness studies, we explore the extent to which legal intervention in relationship breakdown creates an arena of strategy and self-interest. Overall, these data demonstrate the ways in which ‘law’ is conceived of as a product of its actors, rather than as being an entity of ‘the state’. We show that heteronormative understandings of gender roles in relationships have been carried over from (different-sex) marriage into civil-partnership proceedings. We argue that lesbians and gay men retain a level of resistance to this legal heteronormativity that has the potential to have transformative effects on contemporary understandings of the place of gender in marriage.

This is the accepted version of a paper that has been subsequently published in the journal, Feminism and Psychology. The definitive version is available at: http://dx.doi.org/10.1177/0959353514562811

It has become commonplace to say that there is a crisis in adult social care in the United Kingdom. This comment reflects on empirical and conceptual work on care, and feminist perspectives on re-valuing care, to make the case for a fundamental re-appraisal of how we resource and regulate adult social care. The problems generated by the uneven implementation of contemporary legal frameworks and the chronic underfunding of social care are explored, to demonstrate how regulatory, governmental and policy choices shape the everyday experience of delivering and receiving formal care services. Once these relational connections between regulation and everyday life are exposed, the need for a different, fairer and more just approach to care regulation becomes clear.

The world of dementia care can be a difficult one for carers to navigate, posing new challenges at every stage from diagnosis to end of life. In her ground-breaking investigation, rooted in original empirical data, Rosie Harding explores the regulatory and legal dimensions of caring for a person with dementia. By exploring carers' experiences of dementia care, she critiques the limitations of current approaches to health and social care regulation. This socio-legal work is a new contribution to the study of feminist care ethics, relationality, and vulnerability theory. Duties to Care argues that by understanding the relational contexts that shape everyday experiences of regulatory structures, we will better understand where law is operating to support carers, and where it adds to the difficulties they experience. Ultimately, the challenges that dementia poses will be addressed only if we find solutions that take account of the relationality of life, dementia, and law.

The needs of LGBT people living with dementia are poorly recognised due, in part, to assumptions that all older people are heterosexual, together with persistent ageist stereotypes that older people are asexual. LGBT older adults are more likely to reside in care homes as a quarter of gay and bisexual men and half of lesbian and bisexual women have children, compared to 90% of heterosexual women and men. Older LGBT people may be unwilling to express their identity within care settings and this can have an impact on their ongoing care. Recognition of the members of an older person’s informal care network is crucial for their ongoing involvement in the life of a person resident in a care setting. However, healthcare professionals may not always appreciate that LGBT people may rely more on their family of choice, or their wider social network, than their family of origin. This article explores socio-legal issues that may be encountered when caring for older LGBT people living with dementia, including enabling autonomy, capacity and applying the legal frameworks in ways which support the identities and relationships of these older people in care.