Hard capacity cases – an English perspective and a plea for help

Alex Ruck Keene, Barrister and Wellcome Trust Research Fellow, King’s College, London

When: 14 August 2017, 4pm-6pm
Where: AUT City Campus, Room WF714 (The Business School Building)

There is currently a very strong challenge to the “functional” model of decision-making capacity embedded in many legislative systems, including those in England and New Zealand. At its highest, and as put by the Committee on the Rights of Persons with Disabilities the challenge is that “[m]ental capacity is not, as is commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity."

On one view, such a challenge is absurd – there are always going to be circumstances under which individuals are (either temporarily or permanently) factually incapable of making decisions, and that mechanisms will always be required to respond to such factual incapacity - even if they are in due course retooled to focus on supporting the legal capacity of the individual.  There is no doubt, though, that there are many cases that arise under the current legislative regimes designed for this purpose whose resolution is difficult, and where outcomes at present - whether inside or outside the court room - all too often seem unsatisfactory.

Alex Ruck Keene, an English barrister specialising in mental capacity law and Wellcome Trust Research Fellow at King’s College London, will present some preliminary findings from his research into the way in which the Court of Protection in England has been addressing questions of capacity in the context, in particular, of health and social care.  These findings  - and the underlying concerns they give rise to – are of wider application than the purely English context, and the workshop will also seek, not least by posing the question of delegates, to compare and contrast the issues that arise in the New Zealand context.

Alex’s research forms part of the groundwork for a major ongoing research project funded by the Wellcome Trust looking at ‘hard’ cases in England, Scotland and New Zealand.  This project will, in 2018, move to interviews with liaison psychiatrists and lawyers in each of these jurisdictions – so part of this workshop will also be a naked plea for expressions of interest for formal recruitment in due course.