The Role of Values and Participation in Judicial Deliberation and Mental Capacity Law

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The empowering principle within the Mental Capacity Act 2005 in England and Wales (MCA) means that the participation and values of individuals with impairments are accorded importance in decisions about their care and treatment. Whether this empowering ethos has been realised in judicial practice is an urgent cause for concern. Judicial discretion currently determines the extent to which P (the subject of proceedings) is involved in decision-making about his or her capacity or best interests, rendering the participatory ideal of the Act contingent on the outcome of judicial deliberation. Some judges meet with P and make decisions in light of P's participation in proceedings; others argue that P's participation is relative to P's proximity to the capacity threshold. These discrepant practices are further complicated by the UN Convention for the Rights of Persons with Disabilities (CRPD) which requires that the rights, will, and preferences of persons with disabilities ought to be respected (Art. 12) and such persons are to have effective access to justice on an equal basis with others (Art. 13). The possibility that judicial practices around P's participation in legal proceedings violate core principles in the MCA and CRPD suggests a pressing need for further critical scrutiny of the nature of judicial deliberation in mental capacity law. This project will clarify the normative function of values in judicial deliberation about (a) P's effective participation and values, (b) mental capacity, (c) best interests in mental capacity law, so as to ensure that such deliberation stands on clear justification. Judges in the practice of mental capacity law are consistently charged with making difficult decisions, ranging from whether or not P's testimony should have weight in deliberations, to judgments about P's care and treatment, which could result in P's death. Such decisions will invoke practitioners' deeper intuitions and values that go beyond legal principles. The project undertakes a long overdue analysis of this phenomenon in mental capacity law, which will demand interdisciplinary methods drawn from social science, philosophy, and legal analysis. The project will also have significant broader implications, such as improving transparency in judicial deliberation process and influencing future policy guidelines and rules around the participation and empowerment of individuals with disabilities in decisions which fundamentally affect their lives. Judicial deliberation determines both procedural decisions (i.e. meetings with P, the extent of P's participation in proceedings) and substantive decisions (i.e. P's capacity and best interests, the weight of P's values in such decisions). Particularly in ethically fraught cases featuring incommensurable values, published judgments can appear as post hoc justifications or impressionistic weighing exercises, with little discussion of how values influence such decisions. Further clarity about the deliberative function of values is necessary if certain judicial decisions in mental capacity law are to be explicable and justifiable. The project aims to:- Improve empirical knowledge of how judges currently invoke values in making procedural and substantive decisions in mental capacity law;- Provide a robust theoretical account of the obligations that are owed to P in light of legal and ethical principles of participation and empowerment and construct a defensible model of judicial deliberation which can help give effect to such principles;- Utilise this broadened empirical and theoretical understanding to construct urgently needed practical tools and principled guidelines which can be used by legal practitioners (i.e. judges, representatives, and advocates) so as to realise the court's obligations to P in ways that are aligned with MCA principles and CRPD commitments.