DR BEVERLEY CLOUGH

The Spaces of Mental Capacity Law
Moving Beyond Binaries
EARLY CAREER FELLOW: JANUARY 2018 – DECEMBER 2018

Beverley Clough is a Lecturer in Law & Social Justice at the University of Leeds School of Law. She holds an LLB, an MA in Health Care Ethics & Law and a PhD in Bioethics & Medical Jurisprudence from the University of Manchester. Beverley has published on mental capacity law and relational theory, with a specific focus to date on informal carers, deprivation of liberty and capacity to consent to sex. She has also worked on issues surrounding older people, access to services and rights. She engages with feminist legal theory and critical disability studies to reflect on mental capacity law and social care.

Beverley’s project seeks to reinvigorate debates in mental capacity law, and disability more broadly, through interrogating the key concepts and binaries that currently frame and constrain legal analysis. This will be done through a critical exploration of the creation and maintenance of the contours of mental capacity law, with an eye to the norms and concepts which inform legal responses in practice, and the concrete consequences of these in terms of embodied experience. It seeks to expose what is obscured or hidden by the binary concepts that frame this area, as well as how recognising relationality and spatial dynamics can help to reconfigure the conceptual terrain. It will provide an important provocation in global debates surrounding the UN Convention on the Rights of Persons with Disabilities (UNCRPD) which has been hailed as ushering in a ‘paradigm shift’ in disability rights.  This will not occur if we are constrained by the current boundaries of our legal approach.

Abstract

The research aims to provide a contextual understanding of mental capacity law and the processes underpinning it, in order to enable broader reflection on disability and embodiment beyond the traditional confines of mental capacity literature. Literature in this context currently flattens the debate and decontextualizes and dehumanizes the legal subject. Through engaging with relational theories which emphasise the spatial and temporal dimensions – as well as the actors who inhabit these dimensions – we get a more nuanced account of the ways in which disempowerment is created and reinforced through these relations. It will adopt a socio-legal methodology, through theoretical inquiry drawing on critical insights from literature on intra-action and new materialisms (Barad) vulnerability (Fineman, Mackenzie) and chronotopes of law (Valverde). This will be informed by genealogical analysis of legal and policy materials including statutes, judgments, guidance and Serious Case Reviews to go beyond the text and expose the processes which create or reinforce the boundaries of the current legal space and lens.

This interdisciplinary exploration will provide an important provocation in global debates surrounding the UN Convention on the Rights of Persons with Disabilities (UNCRPD) which has been hailed as ushering in a ‘paradigm shift’ in disability rights. This will not occur if we are constrained by the current boundaries of our legal approach. The mental capacity framework is built upon a number of binaries- capacity/incapacity; autonomy/paternalism; carer/cared-for; empowerment/protection; public law/private law. Without critically disrupting these pervasive binaries, and a more grounded, contextual understanding of the processes and generating effects underpinning them, we cannot move beyond them to give effect to the transformative potential of the UNCRPD. The research will further the ambitions of the ISRF to advance interdisciplinary work in a context in which it is currently lacking.

The Research Idea

The project will advance a novel thesis for critical socio-legal theory in the context of disability by exposing the mutually interwoven processes and spaces which have created and cemented the current contours of mental capacity law. Unlike previous critical work in the disability context, this project interrogates the socio-legal dynamics underpinning concepts such as autonomy, capacity and choice. In doing so, it demonstrates that our current framework is not ‘natural’ or fixed, and these processes can be changed and reconfigured to produce visionary alternatives.

Scholars in areas as diverse as law, sociology, science and technology studies and geography have been engaging in debates about relationality and assemblages. Through engaging with such understandings, and building on feminist and disability theories, the binaries that have underpinned and pervaded mental capacity law will be challenged, and the structural and institutional impacts on the embodied experience exposed. Moving beyond these binaries allows us to see that the ‘paradigm shift’ believed to be contained within the UNCRPD will not materialise simply by inscribing the rights on paper or by seeing the role of the state and its institutions through the lens which has pervaded political and legal thinking in this context to date. Rather, this will be achieved by recognising the processes and relations, and the contextual experiences which constitute the lived experience of people with disabilities. This complex intra-action will be seen to shape all of our experiences; an insight which opens new conversations and directions for social justice more broadly.

Background

The research comes at an important moment for disability theory and politics. Whilst the UNCRPD is about disability, it can also be viewed as part of an ongoing broader international debate about theories of justice (Quinn). This invites creative, nuanced and novel insights into what we mean by justice; how we conceive of the state and its role; and how we conceptualise and respond to disability within this approach to justice.

However, this opportunity has not yet been meaningfully engaged with. There is a danger that we will allow the boundaries of our current legal and theoretical framework to constrain our thinking. For example, one of the core debates in disability studies is the opposition between social models of disability and individual models of disability. This tends to become further polarised along an axis of materialism/idealism. Whilst there have been increasing efforts to critically engage with cognitive impairments in this context, there is a lack of critical literature linking disability studies to mental capacity law. Many of the concepts that shape mental capacity law and the liberal legal framework more generally – such as capacity, autonomy, liberty, choice – are tacitly accepted as fixed and immutable. The presumed ontological separateness of the static legal subject residing in much of the disability literature is ripe for critical interrogation. If we start from the position that the binaries and boundaries of law are not fixed or natural then we can open up ways to consider the dynamics that create and underpin them.

The Focus

The research advances a novel approach to mental capacity law and law more broadly by looking at the conditions of possibility for the binaries which pervade a liberal legal framework. This genealogical approach shows the entangled production of boundaries as opposed to presuming binaries as natural. Despite the potential for change offered by the UNCRPD, much of the literature is stagnating and is constrained by the accepted wisdom and binaries that frame debates in disability and mental capacity. Whilst there has been more critical work recently on relational autonomy, for example, this still seems to struggle when it meets the oppositional concept of paternalism, and to fall back into the comfortable binary. This research exposing the relational processes and spatial, scalar and temporal context, challenges these binaries and to open up new ways of conceptualising and framing the issues.

These binaries have very tangible effects through mental capacity law. One example is the way in which the binary between capacity and incapacity frames the way that services respond to people with learning disabilities who disengage from services and are being exploited by ‘friends’. The struggles around the margins of capacity/incapacity here are further infused by the question of whether to ‘empower’ or ‘protect’, with the implication being that these are in tension or oppositional. Considering real-life situations such as these allows us to reflect not just on cognitive impairments and embodied experiences of these, but also to consider the way in which our embodied context impacts us all.

Theoretical Novelty

Emphasising the dynamic processes of legal landscapes and the way in which these configure and reconfigure relations suggests new ways to approach issues of mental capacity and disability. The mutually interwoven, active processes of these spaces shows this lack of ‘fixedness’ which opens ways to re-imagine and create new assemblages. This novel approach will challenge dominant frameworks which stultify any promised progression and empowerment, and unravel the binaries that are central to legal and governmental administration in the context of mental capacity, disability and legal subjectivity more broadly.

This invites broader questions about the way in which the state and its institutions can be reconfigured or reimagined in order to disrupt these patterns or to produce different networks of relations. These questions will be provoked by pinpointing particular instances in which the individualistic, narrow application of mental capacity law presupposes a particular liberal understanding of the state, and exposing the way in which the role and processes of institutional machinery constitutes the experiences of actors. The state is always already there, and its processes are always intra-acting in particularised ways. One of the particularly innovative insights from this will be on the nature of ‘judging’ and ‘assessing’ through the mental capacity framework. Law is often seen as ‘objective’ and the act of assessing capacity as ‘discovering’. The research will reconceptualise this through the understanding that institutional actors are not objective observers outside of these assemblages, but part of the process of producing and reproducing.

Methodology

A socio-legal methodology will be adopted which will involve critical theoretical inquiry into debates around disability, justice and mental capacity. This stands in contrast to the doctrinal approaches to mental capacity law which tend to dominate the debates. Insights from the literature on new materialisms (Barad, Braidotti) and critical geography (Hall and Wilton) will be infused in innovative ways with existing socio-legal literature on vulnerability (Fineman) care (Tronto) and capabilities (Mackenzie). The spatial approach advocated by Valverde focusing on the chronotopes of law will be central to the call for a focus on context and dynamic processes. There is clear scope for productive interaction between these approaches. Fineman’s work on vulnerability and the responsive state, whilst being focused primarily on legal theory, has been increasingly influential in the social sciences. The cross-pollination of ideas here and reflexive interrogation of resonances between them will create a novel and nuanced sense of networks of relations and intra-actions underpinning the law in practice.

This will interact with a genealogical interrogation of legal materials. The legal and policy landscape around capacity and social care will be focused on, primarily through close textual analysis of Court of Protection judgments. These cases will be selected for the ways in which they expose the binaries underpinning the legal framework. The project will also critically analyse Serious Case Reviews which have taken place when adults with learning disabilities have died following withdrawal from services to expose the binaries constraining state responses and views of the boundaries of these.

Work Plan

The first six months of the project will be spent engaging in the critical interrogation of the theoretical materials, and application of these to challenge the pervasive binaries in this context. Preliminary ideas will have been presented at conferences in the summer preceding the fellowship, so this time will be spent building on feedback.

The outputs will be two journal articles – one in Medical Law Review and the other in a generalist journal such as Oxford Journal of Legal Studies or Journal of Law and Society. The remaining time will be spent working on a monograph in which the theoretical approach will be developed in depth. I am in conversation with the editors of Routledge’s interdisciplinary Social Justice Series and have submitted a proposal. I will disseminate ideas both through existing networks and developing new ones. I will apply for a Visiting Fellowship at the Vulnerability and the Human Condition Initiative at Emory University to benefit from expertise there in vulnerability and disability, led by Professors Martha Fineman and Rosemary Garland-Thomson. I will also engage with the University Technology Sydney to share ideas with their internationally recognised researchers in disability and social justice. Findings will be presented at critical theoretical conferences including the Socio-Legal Studies Association (Bristol 2018) and American Law & Society Association (Toronto 2018), as well as practitioner focused conferences including the Mental Disability Law Conference (2018). To enable wider public impact, findings will be shared through accessible reports and blog posts.

Outcome

The publication and dissemination of the monograph and journal articles will be a vital opportunity to maintain interest in the project and to strengthen the networks which will have emerged through it. This will open up new lines of engagement between researchers in law, social policy, sociology, new materialisms, geography, political theory and philosophy. This will enable much needed connections to be made between these disciplines and a network of ideas to build around relationality and social justice, to enable novel approaches to current pervasive issues. This will open up the space for larger interdisciplinary collaborations and funding bids.

The research will challenge the underlying norms and assumptions underpinning the very idea of mental capacity – of disability, vulnerability, agency and the legal subject – and reflect outwards on the transformative potential of these realisations for other areas of law. Such insights are currently lacking in legal theory. This will have significant implications for responding to pressing issues in society at present, such as increasing inequality, reductions in access to justice, the crisis in social care and the ongoing consequences of austerity. The outputs and dissemination through various channels, including through accessible public blogs and reports, will provide an important intervention and provocation in debates about the UNCRPD when signatory states are grappling with their obligations under it. In particular, there is increasing interest in a UN Convention on the Rights of Older People, and these critical insights on the UNCRPD will provide useful reflections for the development of this.