Edited by
Camillia Kong, John Coggon, Penny Cooper, Michael Dunn and Alex Ruck Keene
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Contents
- 1Introduction: Values, Participation and Mental Capacity Laws in International Comparative Perspective
Camillia Kong, John Coggon, Penny Cooper, Michael Dunn and Alex Ruck Keene 1
- 2Mental Capacity Law in England and Wales: A Value-Laden Jurisdiction
Rebecca Stickler 9
- 3Mental Capacity Regimes Approach to Values and Participation in Proceedings Involving Individuals with Impaired Decision-Making Capacity in Scotland
Jill Stavert 27
- 4The Fusion Approach to Mental Capacity Law in Northern Ireland: Possibilities and Challenges
Gavin Davidson, Martin Daly, Moira Harper, Danielle McIlroy and Lorna Montgomery 46
- 5Judging Values in a Time of Transition: An Irish Perspective
Mary Donnelly 65
- 6US Laws Relating to Decision-Making on Behalf of P
Stephen Latham 85
- 7Indigenous Peoples with Disabilities and Canadian Mental Capacity Law
Ruby Dhand 100
- 8Capacity, Participation and Values in Australian Guardianship Laws
Cameron Stewart 120
- 9Navigating Values in Aotearoa New Zealand
Kris Gledhill 143
- 10
Values and Participation of Individuals Without Mental Capacity in Hong Kong Daisy Cheung 162
- 11Asian Values and Confucianism: How P’s Ability to Participate in Court Proceedings in Singapore Is Influenced by P’s Cultural Milieu
Yue-En Chong 182
- 12Respect for the Will and Preferences of People with Mental Disorders in German Law
Tanja Henking and Matthé Scholten 203
- 13The Place of Values and P’s Participation in Mental Capacity Law: Themes, Synergies and Tensions
Camillia Kong, John Coggon, Penny Cooper, Michael Dunn and Alex Ruck Keene 226
Index 251
Notes on Contributors
Daisy Cheung is Deputy Director of the Centre for Medical Ethics and Law and Assistant Professor at the Faculty of Law, University of Hong Kong. Her research focuses on the law and ethics of mental health and capacity, and she has published on these topics across a number of contexts. She is a member of the Mental Health Law Committee of the Law Society of Hong Kong, and a co-founder of a support group for persons on conditional discharge in Hong Kong.
Yue-En Chong is Founder of Bethel Chambers LLC, a boutique Private Client and Family Law Practice Firm in Singapore. His LLB (Hons) is from the National University of Singapore and he also holds a LLM (Distinction) from Cardiff University specialising in Social Care Law. Yue-En is also an accredited Trust and Estate Practitioner (TEP) and currently serves as a Steering Committee Member on STEP’s Mental Capacity Global Special Interest Group.
John Coggon is Professor of Law in the Centre for Health, Law, and Society, in the University of Bristol Law School. He has expertise in mental capacity law, and public health ethics and law. His external appointments include membership of the Nuffield Council on Bioethics. Professor Coggon was a co-investigator on the Judging Values and Participation in Mental Capacity Law project.
Penny Cooper is Professor and former practising barrister based at the Institute for Crime and Justice Policy Research, Birkbeck College. Her research focuses on the effective participation of people in courts and tribunals and she has published over 100 legal articles and book chapters in this area. She co-founded (2012) The Advocate’s Gateway and has written numerous ‘TAG’ toolkits. Professor Cooper was also a co-investigator on the Judging Values and Participation in Mental Capacity Law project.
Martin Daly is a Service User Consultant by Experience in the Belfast Health and Social Care Trust. Martin was the first person to be thus
appointed in mental health services in Northern Ireland and has been central to involving service users in the development of law, policy, services and research. He also teaches on a range of health and social care professional training courses. Gavin Davidson is Professor of Social Care at Queen’s University Belfast. He previously worked as a social worker in mental health services. Gavin was involved in the development of the Mental Capacity Act (Northern Ireland) 2016 and is part of the Department of Health’s Reference Group for implementing the Act.
Ruby Dhand is Professor in the Faculty of Law at Thompson Rivers University, British Columbia. Her research – mental health law, human rights law, health law and policy, disability law, access to justice, the impact of race, culture, ethnicity and other intersectional factors upon the law, clinical legal education and science and law – has been used for law reform initiatives to increase access to justice across Canada. She has co-authored: Law and Mental Health in Canada: Cases and Materials (LexisNexis, 2022), Halsbury’s Laws of Canada: Mental Health (LexisNexis, 2023) and Law & Disability in Canada: Cases & Materials (LexisNexis, 2021).
Mary Donnelly is Professor of Law at the School of Law, University College Cork (UCC) where she researches in health and capacity law. She is Joint Chair of the Health Service Executive National Consent Advisory Group and of the HSE Assisted-Decision-Making Implementation Steering Committee, Deputy Chair of the National Research Ethics Committee (Clinical Trials) and a member of the Mental Health Commission Legislation Committee.
Michael Dunn is Associate Professor at the Centre for Biomedical Ethics in the National University of Singapore and was previously at the Ethox Centre, University of Oxford. He is a health and social care ethicist, and was one of the co-investigators on the Judging Values and Participation in Mental Capacity Law project. He has been conducting ethical and sociolegal analysis on the legal and practical application of various aspects of the Mental Capacity Act 2005 for the past 18 years. He has written more than 80 peer-reviewed academic journal articles and book chapters, and authored/edited five books.
Kris Gledhill, formerly a barrister at the London bar, is Professor of Law at the Auckland University of Technology Law School. His teaching and research areas include human rights law and mental health law. He is the editor of the Mental Health Law Reports and editor in chief of the International Journal of Mental Health and Capacity Law.
Moira Harper is a Carer Advocate for Cause, which is a voluntary sector organisation providing support for the families and friends of people with mental health problems. Moira is also involved, as a carer representative, in promoting the consideration of carers in developments in mental health law, policy, services, research and training. Tanja Henking is Professor for Medical and Criminal Law, University for Applied Sciences Würzburg-Schweinfurt (since 2015) and director of the Institute for Applied Social Sciences (IFAS, founded in 2019). Her research focuses on decisions at the beginning and end of life and legal issues in psychiatry with special focus on patients’ rights. She has recently been working more intensively in the field of AI and digitalisation in healthcare under the topics of autonomy, (capacity to) consent, changes in the doctor–patient relationship and the understanding of illness.
Camillia Kong is Senior Lecturer at the School of Law and Fellow of the Institute of Humanities and Social Sciences at Queen Mary University of London. She was the Principal Investigator of the AHRC-funded project Judging Values and Participation in Mental Capacity Law. Alongside numerous publications, she is the author of the book Mental Capacity in Relationship: Decision-Making, Dialogue, and Autonomy (Cambridge University Press, 2017) and has, with Alex Ruck Keene, co-written Overcoming Challenges in the Mental Capacity Act 2005: Practical Guidance for Working with Complex Issues (Jessica Kingsley, 2018).
Stephen Latham is Director of Yale University’s Interdisciplinary Center for Bioethics. He is a graduate of Harvard College, Harvard Law School and the UC Berkeley doctoral programme in Jurisprudence and Social Policy. He is chair of Yale’s Human Subjects Committee, co-chair of its Embryonic Stem Cell Research Oversight Committee and a member of the Yale–New Haven Hospital clinical ethics committee. He is author of over a hundred articles on bioethics and health law, and is a Fellow of the Hastings Center.
Danielle McIlroy is an Approved Social Worker in the Belfast Health and Social Care Trust and a PhD student at Queen’s University Belfast. Danielle previously worked as a social worker in learning disability services and her PhD research focuses on the processes involved in the determination of a person’s best interests.
Lorna Montgomery is Senior Lecturer in Social Work at Queen’s University Belfast. She previously worked as a social worker and social work trainer in mental health and adult services. Lorna’s research focuses
on mental health including the interface between adult safeguarding and mental health and capacity law. Alex Ruck Keene is a barrister, writer and educator, whose practice at 39 Essex Chambers is focused on mental capacity and mental health law, appearing at the Supreme Court and the European Court of Human Rights. He writes extensively in the field, and created the website: www.mentalcapacitylawandpolicy.org.uk. He is Visiting Professor at King’s College London and Visiting Senior Lecturer at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London. He was appointed KC (Hon) in March 2022 for services to mental health and capacity law outside the courtroom.
Matthé Scholten is a researcher at the Institute for Medical Ethics and History of Medicine of the Ruhr University Bochum, Germany. He received a PhD in Philosophy from the University of Amsterdam. His research focus is on mental capacity, supported decision-making, coercion in psychiatry, psychiatric advance directives, and the implications of the UN Convention on the Rights of Persons with Disabilities for mental health care.
Jill Stavert is Professor of Mental Health and Capacity Law, founder and Director of the Centre for Mental Health and Capacity Law and lead of the Centre for Mental Health Practice Policy and Law Research at Edinburgh Napier University, with expertise in mental health and capacity law, related human rights, and associated law and policy reform. She was a member of the Scottish Mental Health Law Review; was involved in aspects of the Scottish Government review of the Adults with Incapacity (Scotland) Act; and was an expert adviser to the Independent Review of Learning Disability and Autism in the Mental Health Act.
Cameron Stewart is Professor of Health, Law and Ethics at the University of Sydney Law School, a member of Sydney Health Law and an associate member of Sydney Health Law, Sydney Medical School. He has degrees in economics, law and jurisprudence. He was the Acting President of the Australian and New Zealand Institute of Health Law and Ethics in 2008–10 and was the Vice-President of the Australasian Association of Bioethics and Health Law, 2010–13. Cameron is also an Honorary Fellow of the Australian College of Legal Medicine and a Fellow of the Australian Academy of Law.
Rebecca Stickler completed her law degree at the University of Oxford and was a practising barrister in England and Wales between 2007 and 2018 specialising in mental capacity and public law. She has extensive experience
of working in the Court of Protection and was repeatedly ranked as a leading barrister for Court of Protection and Public Law in legal directories. She was a Research Fellow on the Judging Values and Participation in Mental Capacity Law project and she is interested in all aspects of mental capacity law, public law and health and social care law.
Acknowledgements
This book is the product of a three-year research project titled Judging Values and Participation in Mental Capacity Law, and generously funded by the Arts and Humanities Research Council (Grant Reference: AH/R013055/1).
We would like to thank all of those who have been involved in the project who have directly and indirectly contributed to the production of this book. This includes one of our professional consultants, Victoria Butler-Cole KC, as well as members of the project’s Advisory Board who are not represented in this book: Phillippa Ashcroft, Richard Huxtable, Sumytra Menon, Denzil Lush and Patricia Rickard-Clarke. We would also like to acknowledge our research assistants who helped to support the development of the content: Gabrielle Schwarzmann and Matthew Watkins.
Our thanks also to Helen Davis, Grace Carroll, Becky Taylor, Freya Trand, Thea Watson and other members of the team at Bristol University Press for their guidance and support throughout the publication process.
Finally, we are grateful to all of our authors: Rebecca Stickler, Jill Stavert, Gavin Davidson, Martin Daly, Moira Harper, Danielle McIlroy, Lorna Montgomery, Mary Donnelly, Stephen Latham, Ruby Dhand, Cameron Stewart, Kris Gledhill, Daisy Cheung, Yue-En Chong, Tanja Henking and Matthé Scholten. Their scholarly efforts and insightful contributions are deeply appreciated and have made this book something that we are all very proud of.