Alex Ruck Keene QC (Hon) shares his thoughts (and a QR code) in advance of his presentation at the World Congress on Adult Capacity in Edinburgh on Tuesday 7-Thursday 9 June 2022. Alex is a member of our Mental Health and Disability Committee.

As I write, I am making my final preparations to deliver a presentation on support for the exercise of legal capacity before the English courts at the World Congress on Adult Capacity (‘WCAC’). It still feels slightly unreal to be making preparations to travel to deliver an actual talk before actual people – memo to self: must remember that it’s not as acceptable to wear shorts when giving a live presentation as one on Zoom. Selfishly, as a London-based lawyer, academic and law reformer, that WCAC is taking place in Scotland is a golden opportunity to engage in one of my favourite activities – comparing and contrasting approaches to adult capacity law – with others from across the world, in a different jurisdiction, and all just a train-ride away.

And, as ever, preparing to give a talk about the law in England & Wales for an audience who will (I hope!) be for the most part from other jurisdictions is a fantastically useful discipline. It requires you to rise above the minutiae of purely domestic statutes, cases and concerns, and to find ways to explain the essence of the law, its promise, and its pitfalls. This time, and drawing in part upon work completed as part of the Wellcome-funded Mental Health and Justice project, I am seeking to use the significant and growing body of case-law emanating from the Court of Protection (considerably more than from courts in most other jurisdictions) to tease out some of the tension points in support for the exercise of legal capacity.

Such support is mandated by Article 12(4) of the UN Convention on the Rights of Persons with Disabilities, to enable the enjoyment of the right to legal capacity by all – irrespective of disability – on an equal basis. Often misunderstood as, or improperly narrowed down to, support for decision-making, I will be using cases decided before Court of Protection to look at such matters as how advance decision-making can constitute support for the exercise of legal capacity. As both a practitioner before and – I hope – a suitably critical academic friend of, the Court of Protection, it will be an interesting challenge to relay a picture of the court and its work that is sufficiently clear, concise and nuanced to stimulate discussion in the session: discussion always being, by far, the most interesting part. And, of course, it will be an interesting exercise to do so speaking at the same conference as the Senior Judge of the Court of Protection, Carolyn Hilder…

Finally, in an attempt to put the past two years behind us, I am going to see whether I can use a QR code for something other than the (hopefully past-tense) exercise of checking in at a venue for COVID-19 control purposes. Rather, I’m using one to link to a reading list produced for the presentation. Indeed, I’m sufficiently enthusiastic about the idea, and think it may also contain sufficiently useful information for people wanting to know more about capacity law in England & Wales, that I’m even happy to have it reproduced here – if you want to hear it all put into context, though, you’ll have to register and attend (there’s still, just, time).

 

Alex Ruck Keene QC (Hon) is an experienced English barrister, writer and educator. His practice in London is focuses on mental capacity and mental health law, providing specialist advice and representation, as well as delivering expert training for front line professionals. He also writes extensively in the field, editing and contributing to leading textbooks.  He is a Wellcome Research Fellow and Visiting Professor at King’s College London, a Visiting Senior Lecturer at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London and a Research Affiliate at the Essex Autonomy Project, University of Essex. He spent 2016 on secondment to the Law Commission as a consultant to their Mental Capacity and Deprivation of Liberty Project and throughout 2018 was legal adviser to the Independent Review of the Mental Health Act 1983. He was a special adviser to the Joint Committee on Human Rights for their inquiry into the human rights implications of the Government’s response to COVID-19, and is currently a special adviser into their inquiry into human rights in the care setting.

Human rights must be at the core of proposals for law reform around advance choices and medical decision-making

Deficiencies in Scots law around advance choices, and medical decision-making in intensive care situations, put human rights in jeopardy, according to a Law Society of Scotland report.

Reform must ensure that law does not discriminate against people who do not have a diagnosed mental illness

The Law Society of Scotland has called for legal reforms to ensure that the law does not discriminate against people who do not have a diagnosed mental illness. The professional body for Scottish solicitors has said it is essential that support is available to everyone who might need it, particularly people with impairments of their capabilities, or who are vulnerable, or at risk from any cause.

World Congress on Adult Capacity

The Seventh World Congress on Adult Capacity will take place Tuesday 7th to Thursday 9th June 2022 in historic Edinburgh incorporating all the valuable informal interactions of a major Congress, and the comprehensive range of plenary and break-out sessions.