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This study began with a review of national policy, and in Chapter Two a picture emerges of fragmented policy development and procedural changes affecting court user participation. The focus of national policy development has been on criminal and family court users who are deemed ‘vulnerable’, although the definition has become increasingly fuzzy within the legal system of England and Wales and contrasts with usage of the term ‘vulnerable’ in other professional spheres. A major part of this study was made up of practitioner interviews and court observations through which four key research questions were addressed: in short, what does it mean for a lay person to participate in court, why does it matter, what promotes/inhibits their participation and what are the implications for participation of limited legal aid, court reform and the urgent shift to remote hearings in response to the COVID-19 pandemic? Chapters Three and Four contain findings from 159 interviews and 316 hours of observations. This uncovered, for the first time, practitioners’ concepts of court user participation. The result: Ten Points of Participation – six relating to form and four relating to function (see Chapter Three, Box 3.1: Conceptualisations of Participation and at Table 5.2: Ten Points of Participation as a provisional framework for court user guidance). Observational data provided many examples of practitioners’ sympathetic and respectful treatment of court users, as well as their efforts to promote and support court user participation. Notwithstanding, there remain significant barriers to participation – for example, lack of legal representation, complex law and procedure, and impenetrable legal language in the courtroom.
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Effective participation in court and tribunal hearings is regarded as essential to justice, yet many barriers limit the capacity of defendants, parties and witnesses to participate.
Featuring policy analysis, courtroom observations and practitioners’ voices, this significant study reveals how participation is supported in the courts and tribunals of England and Wales. Including reflections on changes to the justice system as a result of the COVID-19 pandemic, it also details the socio-structural, environmental, procedural, cultural and personal factors which constrain participation.
This is an invaluable resource that makes a compelling case for a principled, explicit commitment to supporting participation across the justice system of England and Wales and beyond.
This chapter concludes the book Capacity, Participation and Values in Comparative Legal Perspective. We draw together key themes and observations from across the book’s chapters, which focus on mental capacity – or guardianship – laws across different jurisdictions, seeking to learn whether and how a person for whom a decision is being made under such laws is empowered to participate in the decision making, and to understand how that person’s values are identified and brought into decisions. The book invites reflections on similarities and distinctions in uses of technical language, and shared or overlapping legal framings and approaches. However, it also provides the basis of deeper-seated observations. These include points of clashing principle within the aims of laws: for example where tensions arise between empowerment, equality, dignity, welfare and respect for a person’s wishes and values (to name just a few). In light of such principled challenges, we examine two salient themes that we perceive in the book: first, how laws and their application belie the myth of liberal neutrality, notwithstanding efforts to achieve a detachment from moral judgement within mental capacity laws; second, how legacies of oppression and/or colonialism bear on the interrelationships between individuals, communities and the state under mental capacity laws.
This chapter sets out the framework and rationale for Capacity, Participation and Values in Comparative Legal Perspective. We explore how core themes of values (that is, the values embedded within a legal framework and whose values are given effect) and participation (that is, whether and how the person’s voice and agency is fostered in decision making about them) establish a fruitful analytic prism through which to draw cross-jurisdictional comparisons of different mental capacity and guardianship legal regimes. Through a shared language with which to speak about capacity law we suggest that cross-jurisdictional learning and dialogue may be fostered.
With contributions from an international team of experts, this collection provides a much-needed international, comparative approach to mental capacity law.
The book focuses particularly on exploring substantive commonalities and divergences in normative orientation and practical application embedded in different legal frameworks. It draws together contributions from eleven different jurisdictions across Europe, Asia and the UK and explores what productive or unproductive values and practices currently exist.
By providing a detailed comparison of how legal and ethical commitments to persons with disabilities are framed in capacity law across different national systems, the book highlights the values and practices that could lead to changes that better respect persons with disabilities in mental capacity regimes.
