The ‘human element’ in the social space of the courtroom: Framing and influencing the deliberative process in mental capacity law

Location: Online via Zoom and in-person at Lecture Theatre, St Cross College 

Date: Thursday 21 October 2021

Time: 12:30 - 14:00 BST

Booking: For the online event please register here. In case you want to attend the on-site event, please book your place via this link.
The new St Cross Special Ethics Seminars are jointly arranged by the Oxford Uehiro Centre and the Wellcome Centre for Ethics and Humanities.


Title: The ‘human element’ in the social space of the courtroom: Framing and influencing the deliberative process in mental capacity law

Speaker: Professor Michael Dunn (Ethox, University of Oxford)


The Mental Capacity Act 2005 in England and Wales (MCA) is explicit in prescribing a values-based legal framework, centred around the concepts of ‘mental capacity’ and ‘best interests’. In legal proceedings, the specialist Court of Protection must grapple with fundamental questions relating to the interpretation and application of the MCA’s principled requirements, with each case having its own distinctive factual matrix and a unique person at the heart of the whole process. In practice, decision-making in the Court of Protection revolves around questions concerning the person’s health and welfare, or her property and affairs, that are characterised by inherent uncertainty and complexity. This includes questions regarding the form of, and weight to be given to, conflicting values, such as the requirement to protect the person lacking capacity and to attend to her subjective wishes in a substitute decision-making process. The MCA itself provides little guidance or clarity about how these complex questions should be navigated, with judges in the Court required to conduct an evaluative, discretionary exercise which ultimately results in a value judgment, framed in response to the evidence and arguments gathered and presented by solicitors, barristers and other legal practitioners.

Recent socio-legal research has begun to shed new light on the complex challenges that arise in the conduct and performance of legal proceedings applying the requirements of the MCA. This presentation develops further insights within this emerging body of scholarship, aiming to explore how legal practitioners frame and influence the MCA’s deliberative and adjudicative processes in the social space of the courtroom. This presentation presents a thematic analysis of semi-structured interviews with 44 practitioners to meet this aim. These participants include barristers, solicitors and other relevant practitioners specialising in mental capacity law, as well as 12 retired judges from the Court of Protection and the Courts of Appeal who have specific experience of adjudicating mental capacity disputes.

It is argued that the concept of the ‘human element’ offers important new empirical insight into how legal practitioners perform their roles, and justify their activities, in the conduct of legal proceedings. There are two main components to how the ‘human element’ takes effect that are outlined. First, it operates as an overarching normative prism that accounts for what good practice demands as a practitioner in mental capacity law, capturing interpersonal norms for professional practice, and detailing the personal and motivational backdrop to such commitments. Second, it explains how practitioners attune and orientate these norms in the day-to-day conduct of their work, as they prepare materials for consideration in the courtroom, present arguments, and adjudicate decisions. In so doing, practitioners also clarify how they respond to challenges that the ‘human element’ of practice presents in this context, including how they grapple with a countervailing normative commitment to objectivity, and how they manage socio-institutional expectations around professional hierarchies and the place of evidence and expertise.