Mediating disputes under the Mental Capacity Act 2005: relationships, participation, and best interests.

This article analyses the use of mediation to resolve mental capacity law disputes, including those that arise in the healthcare context. It draws on original empirical data, including interviews with lawyers and mediators, and analysis of a mediation scheme, to argue that mediation has the potential to be an effective method of resolution in mental capacity law. It highlights the relationship benefits of mediation while acknowledging the challenges of securing P's participation and best interests. The final section of the article considers how mediation can operate in one of the most challenging healthcare environments, the Intensive Care Unit. The article emphasizes that the challenges we see in mediation are not unique and exist across the spectrum of Court of Protection practice. Therefore, the article concludes that mediation may be used effectively but the jurisdiction would also benefit from a clearer regulatory framework in which it can operate.

Competing Professional Knowledge Claims About Mental Capacity in the Court of Protection.

This article analyses the role of evidence in resolving Court of Protection proceedings, drawing on qualitative data obtained from observations of the Court of Protection, a review of Court of Protection case files and interviews with social workers. It is argued that there is a hierarchy of professional evidence in mental capacity law. Psychiatric evidence is at the top of this hierarchy, whereas social work evidence is viewed as a less persuasive form of knowledge about mental capacity. The article argues that this is because mental capacity law views psychiatric evidence as a form of objective and technical expertise about capacity, whereas social work evidence is viewed as a form of subjective, experiential knowledge. In challenging this hierarchy, it is instead argued that mental capacity law should place greater weight on experiential knowledge emanating from a relationship with the subject of the proceedings, rather than elevating the status of psychiatric evidence about mental capacity.

Psychiatric Injury Claims and Pregnancy: Re (a Minor) and Others v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824.

RE and others concerned a clinical negligence claim against the Defendant NHS Trust by a baby injured during childbirth, as well by her mother and grandmother for psychiatric injury found to have been caused by those events. This commentary focuses on the claim for psychiatric injury by the mother and grandmother, both of which succeeded on the basis that the childbirth was a sufficiently shocking and horrifying event. This commentary urges caution about this development based on how it represents law's view of childbirth and the growth of claims that might result from any expansion of liability in this area.