Dr Jaime Lindsey, Associate Professor of Law, University of Reading
In our Meet the Book Author Series, the Journal of Law and Society and the Centre of Law and Society provide first-hand accounts from authors who have recently contributed notable socio-legal books to their respective fields. In this post, we hear from Dr Jaime Lindsey, whose new book Reimagining the Court of Protection. Access to Justice in Mental Capacitywas published in September 2022 with Cambridge University Press.
What is the book about?
For adults impacted by the jurisdiction of the Court of Protection (CoP), they can have their freedoms and decisions interfered with on the basis that they lack the mental capacity to make the decisions for themselves. While many of us take the freedom to make our decisions for granted, this is not the case for, often disabled, adults who are found to lack capacity under the Mental Capacity Act 2005 (MCA) (referred to throughout the book as the ‘Person’). It is this relatively under-explored jurisdiction which is the focus of Reimagining the Court of Protection. I analyse the CoP against a procedural justice framework of values, arguing for its reimagining in ways that better secure access to justice for the Person through numerous suggestions for reform. I conclude by thinking through what a reimagining process might look like for a specialist court such as the CoP. This includes discussion of design thinking, an innovative socio-legal approach which suggests collaboration between users, designers and other disciplines, as well as incorporating ‘practical, critical and imaginative’ approaches. For me, this was an interesting way of thinking how the CoP might do things differently and provided a useful framework to move forward with the reimagining exercise which is so necessary.
Why did I write it?
When carrying out the empirical research that inspired the book it soon became clear to me, in the truest socio-legal sense, that mental capacity law in practice is quite different from mental capacity law in the books. And this was particularly acute when I observed how the CoP operated. For example, at the time of the observational research in 2015-2016 there was an expectation that rule changes would improve the Person’s participation in CoP proceedings, but this was not my perception at all. In fact, in one observed case the Person, through their lawyer, expressed a desire (albeit inconsistent) to attend the hearing yet this was not facilitated by the judge.
Furthermore, while the CoP has had increasing scrutiny in recent years, there had been relatively little academic focus on its workings at the time the research was carried out (although we now see the Open Justice Court of Protectionproject adding much needed additional scrutiny to the field). I therefore wanted to ‘shine a light’ on what was happening in this jurisdiction. It is an area of legal practice which predominantly impacts upon disabled people and who, from my standpoint as researcher, seemed to have a very limited voice in the disputes which were entirely about them. Overall, therefore, the book stems from a desire to talk about what was happening on the ground, to include perspectives which go beyond the reported judgments, and, based on that grounded perspective, make an argument for how access to justice can be better secured in the CoP.
 Notwithstanding the important work done at Cardiff, see L Series, A Mercer, A Walbridge, K Mobbs, P Fennell, J Doughty and L Clements, Use of the Court of Protection’s welfare jurisdiction by supervisory bodies in England and Wales (2015); L Series, P Fennell and J Doughty, The Participation of P in Welfare Cases in the Court of Protection (2017).
How did I go about doing this research?
The book adopts a socio-legal approach, drawing on doctrinal, theoretical and empirical analyses. The empirical work included conducting observations of CoP hearings (both in person and virtual), analysis of CoP case files, and interviews with various practitioners (social workers, lawyers and mediators), taking place across a number of years from 2015-2020. Gaining access to the CoP entailed a careful process of application to the Ministry of Justice and a meeting with the then Vice President of the court, who were supportive of the research at a time when the CoP was attempting to become more transparent. Looking back, my reflections on the methodology and ethical issues, while not discussed in detail in the book, were an important part of the iterative research process.
As well as the empirical analysis, the book provides a theoretical account of procedural justice as a lens through which to analyse access to justice in the CoP. I also highlight ways that a procedural justice response could be better operationalised. For example, through a requirement to place the Person at the centre of CoP processes and practices, including by ensuring that existing rules, processes and practices, as well as reforms to those practices, have primary regard to the Person. Doctrinal analysis permeates the book too, with a particular focus on procedural rules, rather than substantive law, given the impact these rules have on the experience of justice for participants.
Overall, this book provides an insight into the workings of a specialist court, the Court of Protection, but also contributes to wider understandings of concepts as relevant to law and socio-legal studies such as procedural justice, access to justice, embodiment, vulnerability and disability.