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      Managing mental incapacity in the 20th century: A history of the Court of Protection of England & Wales

      International Journal of Law and Psychiatry

      Elsevier

      Mental capacity, Court of Protection, Mental illness, Disability, History

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          There is no author summary for this article yet. Authors can add summaries to their articles on ScienceOpen to make them more accessible to a non-specialist audience.

          Abstract

          This article explores the history of the Court of Protection of England & Wales (CoP) over the twentieth century. The CoP, which is responsible for making financial and welfare decisions on behalf of those deemed incapable of doing so themselves, presently faces a rapidly growing caseload, and considerable scrutiny and critique. Such close attention to its work may be new, but many of the issues it faces have deep roots. Using practitioners' texts, judgements, and the archives of the CoP and the Lord Chancellor's Office, I review the evolution of the CoP in terms of its structure and caseload, its decisions regarding incapacity, its efforts to manage the affairs of those found incapable, and its long-term survival. This reveals the origins of many of the issues it faces today, the different anxieties and approaches that have animated its work in the past, the ways in which approaches to incapacity have changed, and the value of a historical perspective.

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          Most cited references 24

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          Mental Capacity Law, Autonomy, and best Interests: An Argument for Conceptual and Practical Clarity in the Court of Protection

           John Coggon (2016)
          This article examines medical decision-making, arguing that the law, properly understood, requires where possible that equal weight be given to the wishes, feelings, beliefs, and values of patients who have, and patients who are deemed to lack, decision-making capacity. It responds critically to dominant lines of reasoning that are advanced and applied in the Court of Protection, and suggests that for patient-centred practice to be achieved, we do not need to revise the law, but do need to ensure robust interpretation and application of the law. The argument is based on conceptual analysis of the law’s framing of patients and medical decisions, and legal analysis of evolving and contemporary norms governing the best interests standard.
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            In Search of the Responsible Subject: History, Philosophy and Social Sciences in Criminal Law Theory

             Nicola Lacey (2001)
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              New Legal Landscapes: (Re)Constructing the Boundaries of Mental Capacity Law.

              This article explores the development of law and policy relating to mental capacity law, situating this within the context of the binaries that have driven this development. Whilst the story of this historical development is well worn, considering it through this lens allows some of the previously hidden problematic consequences of these binaries to come to the fore in our debates. The article will expose these issues through considering the binary between capacity and incapacity, and the interlinked binaries of empowerment/protection and autonomy/paternalism underpinning policies and debate in this area. It will be shown that the struggles around the boundaries of this framework are becoming more pressing given the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which presents a more fluid and potentially transformative framework for thinking about the legal subject in this context. There is here a danger, however, that we may end up falling too easily into seeing these issues through our current framework and in turn missing the opportunity to realise the potential of the UNCRPD. The article will disrupt and denaturalise the 'given-ness' of these conceptual boundaries, drawing on theoretical insights that seek to foreground relationality and the dynamic nature and processes of law. This opens the space in which to reimagine alternative trajectories for legal and ethical responses to take, and to provoke new conceptual pathways.
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                Author and article information

                Contributors
                Journal
                Int J Law Psychiatry
                Int J Law Psychiatry
                International Journal of Law and Psychiatry
                Elsevier
                0160-2527
                1873-6386
                1 January 2020
                Jan-Feb 2020
                : 68
                Affiliations
                Centre for History in Public Health, London School of Hygiene and Tropical Medicine, 15 -17 Tavistock Place, London WC1H 9SH, UK
                Article
                S0160-2527(19)30186-4 101524
                10.1016/j.ijlp.2019.101524
                7026664
                32033695
                © 2020 The Author

                This is an open access article under the CC BY license (http://creativecommons.org/licenses/by/4.0/).

                Categories
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                Law

                history, disability, mental illness, court of protection, mental capacity

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