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The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view to sketch out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity.

Review of case-law in England and Wales and relevant domestic and international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with Disabilities (“CRPD”).

It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Rather – and perhaps ironically – the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need to further look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation.

It seems to me that it is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent major developments in neuroscience, it will inescapably remain a concept which requires judgments based on interactions between the assessor and the assessed. But that is not thereby to say that it is an irremediably relative and flawed concept upon which we cannot place any weight. Rather the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation.

This paper serves as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the CRPD.

The purpose of this paper is to outline how questions relating to capacity arise in the context of safeguarding, and when applications to the Court of Protection are required in relation to those who may lack capacity. It also seeks to provide guidance as to how applications to the Court of Protection should be made so as to ensure that they are determined effectively and in a proportionate fashion.

The paper draws on the practical experience of practising barristers appearing before the Court of Protection, and on the experience of a social worker who is an MCA/DOLS lead at a London local authority. The paper proceeds by way of a review of the relevant statutory provisions, an overview of the Court of Protection and then to a practical analysis of when and how applications to the Court need to be made.

When to go to the Court of Protection in the safeguarding context is poorly understood, and there has not been proper recognition of the fact that proceedings for “adult care orders” have a strong forensic analogy with applications for care orders in relation to children. It is only by recognising these forensic similarities that local authorities can properly make use of the Court of Protection in the discharge of their obligations to vulnerable adults in their area.

The paper should lead to a recognition that there is a specialist “adult protection court” within the Court of Protection, and that applications for adult care orders to that court require specific and careful preparation and presentation. It will therefore lead to better use of the Court of Protection in the safeguarding context and – ultimately – a better balance between empowerment and protection of vulnerable adults who may lack capacity.

The paper is original in combining both legal and social work expertise to reach practical conclusions as to why such poor use has been made of the Court of Protection in safeguarding context. Its value lies in the deployment of that expertise to suggest how better use can be made in the future.