A Local Authority v JB [2020] EWCA Civ 735 and A Local Authority v AW [2020] EWCOP 24: Rethinking Sexual Capacity?

In A Local Authority v JB and A Local Authority v AW, the Court of Appeal and Court of Protection, respectively, had to consider questions regarding decision-making about sexual relationships. This case commentary suggests that both decisions are to be welcomed in many ways, not least in the primacy they give to the role of consent within sexual relationships. However, working through their implications also reveals a number of perplexing legal and practical binds that cannot easily be overcome, and that in fact stem from the way that the Mental Capacity Act 2005 itself works. In light of this, the commentary concludes by suggesting that it is likely that there will be continued dissatisfaction with this area of law and hints that the time may have come to rethink sexual capacity.

Unspoken and unthinkable: The older disabled body in judicial discourse.

While much has been said about gendered bodies in legal discourse, as yet relatively little has been written about older bodies. This is surprising given the fact older people are statistically far more likely to be the subjects of certain areas of law which constrain and regulate bodily autonomy, such as mental health and capacity law. This paper uses discourse analysis to understand the way in which older disabled bodies appear in judicial discourse. It is argued that these bodies are often understood as abject, which in turn is used to legitimize certain problematic legal interventions.

Ageism and Autonomy in Health Care: Explorations Through a Relational Lens.

Ageism within the context of care has attracted increasing attention in recent years. Similarly, autonomy has developed into a prominent concept within health care law and ethics. This paper explores the way that ageism, understood as a set of negative attitudes about old age or older people, may impact on an older person's ability to make maximally autonomous decisions within health care. In particular, by appealing to feminist constructions of autonomy as relational, I will argue that the key to establishing this link is the concept of self-relations such as self-trust, self-worth and self-esteem. This paper aims to demonstrate how these may be impacted by the internalisation of negative attitudes associated with old age and care. In light of this, any legal or policy response must be sensitive to and flexible enough to deal with the way in which ageism impacts autonomy.

"This Man with Dementia"1-'Othering' the Person with Dementia in the Court of Protection.

In recent years, dementia has been subjected to an increasing ethical, legal, and political gaze. This article analyses how the Court of Protection considers the perspective of the person with dementia when making best interests decisions on their behalf under the Mental Capacity Act 2005. The article draws upon feminist and disability literature to highlight how the Court has, on occasions, 'othered' the person with dementia during the process of making best interests decisions. This is despite law and policy increasingly emphasising that the views of the person who lacks capacity should be central to any best interests decision, as well as emphasising the importance of de-stigmatisation of cognitive impairments, such as dementia. Finally, using examples from recent cases, it is argued that by adopting an intersubjective approach, and by recognising and exploring the complexity of the relationships that the person with dementia has, the Court can go some way to avoiding the process of 'othering'.