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    Beyond the balancing scales: the importance of prejudice and dialogue in A Local Authority v E and Others

    Kong, Camillia (2014) Beyond the balancing scales: the importance of prejudice and dialogue in A Local Authority v E and Others. Child and Family Law Quarterly 26 (2), pp. 216-236. ISSN 1358-8184.

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    Abstract

    In May 2012 a best interests ruling was made under the Mental Capacity Act 2005 to coercively treat a severely anorexic woman against her will. The best interests decision was purportedly reached through a process of judicial balancing; however, there is something deeply unsatisfactory about this account. The commentary delves beyond the expressed balancing method and applies the tools of philosophical hermeneutics to both understand and challenge the best interests ruling in A Local Authority v E and Others. First, the hermeneutic concept of ‘prejudice’ makes explicit the implicit judgements determining the best interests decision in this case. Second, the commentary challenges the best interests decision in two ways: (i) the hermeneutic emphasis on dialogical understanding provides grounds for questioning the judge’s failure to integrate the views of E and her wider decision community (including family and long-term clinicians); (ii) the ruling could be deemed invalid due to the implicit application of a status-based rather than statutory functional test to assess E’s current and retrospective capacity.

    Metadata

    Item Type: Article
    Keyword(s) / Subject(s): adjudication, anorexia, best interests, hermeneutics, Mental Capacity Act 2005, A Local Authority v E and Others
    School: Birkbeck Schools and Departments > School of Law
    Depositing User: Camillia Kong
    Date Deposited: 12 Dec 2018 18:51
    Last Modified: 12 Dec 2018 18:51
    URI: http://eprints.bbk.ac.uk/id/eprint/25449

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