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    Judging values and participation in mental capacity law

    Kong, Camillia and Coggon, J. and Dunn, M. and Cooper, Penelope (2019) Judging values and participation in mental capacity law. Laws 8 (1), p. 3. ISSN 2075-471X.

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    Abstract

    Judges face a challenging task in determining the weight that ought to be accorded to the person’s (P) values and testimony in judicial deliberation about her capacity and best interests under the Mental Capacity Act 2005 (MCA). With little consensus emerging in judicial practice, incommensurable values drawn from divergent sources often collide in such cases. This paper outlines strict and flexible interpretations of the MCA’s values-based approach to making decisions about capacity and best interests, highlighting the problematic implications for the normative status of P’s values and the participatory role of P in judicial deliberations. The strict interpretation draws a false separation between ascertaining P’s values and the intrinsic value of enabling P’s participation in court proceedings; meanwhile, the flexible interpretation permits judicial discretion to draw on values which may legitimately override the expressed values of P. Whether in the ambiguous form of internal and/or extra-legal judicial values, these value sources demand further scrutiny, particularly with regard to their intersection with the values held by P. We offer provisional normative guidelines which set constraints on the appeal to extra-legal values in judicial deliberation and outline further research pathways so as to improve the justification around judicial decisions regarding P’s participation.

    Metadata

    Item Type: Article
    School: Birkbeck Schools and Departments > School of Law
    Depositing User: Camillia Kong
    Date Deposited: 25 Jan 2019 09:05
    Last Modified: 16 Sep 2019 19:57
    URI: http://eprints.bbk.ac.uk/id/eprint/25995

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