Reimagining the Court of Protection: Access to Justice in Mental Capacity Law By Jaime Lindsey, Cambridge: Cambridge University Press, 2022, 216 pp., £85.00
| Published date | 01 December 2023 |
| Author | MARY DONNELLY |
| Date | 01 December 2023 |
| DOI | http://doi.org/10.1111/jols.12456 |
DOI: 10.1111/j ols.12456
BOOK REVIEW
Reimagining the Court of Protection: Access to
Justice in Mental Capacity Law
By Jaime Lindsey, Cambridge: Cambridge University Press, 2022, 216 pp.,
£85.00
MARY DONNELLY
School of Law, University College Cork, College Road, Cork, T12 K8AF, Ireland
Email: m.donnelly@ucc.ie
The Court of Protection (CoP) is a unique institution. It has the authority to make decisions that
intrude deeply and broadly into individuals’ personal lives, telling them who they can see, where
they can live, whether they can marry or have a sexual relationship, and sometimes even when
they should live or die. As Jaime Lindsey identifies in the Introduction to Reimagining the Court
of Protection: Access to Justice in Mental Capacity Law (p. 1), this intrusion into the space tradition-
ally protected in liberal democracies is not because the Person1has done anything unlawful but
solely because they do not have the level of decision-making ability deemed necessary to allow
them to make these decisions for themselves. The exerciseof the CoP’s wide-ranging authority fre-
quently involves applying the essentially amorphous best interests standard set out in Section 4 of
the Mental Capacity Act 2005 (MCA). Notwithstanding that the Person’s past and present wishes,
feelings, beliefs, and values are now afforded an enhanced role in the jurisprudence of the CoP,2
judicial discretion and judicial values continue to play a prominent role in the application of the
best interests standard, well beyond that usually associated with the appropriate operation of the
rule of law.3As recognizedby Sir Mark Hedley, writing extra-judicially about his long experience
as a judge of the CoP,the ‘areas under consideration are value-laden and every outcome will have
involved a value judgment made by the decision-maker’.4Two other features set the CoP apart,
including from its counterparts in other jurisdictions.5First, it is a specialist court that, over the
years, has developed its own norms and methods for addressing the ‘human element’ in the delib-
1Like Lindsey, I use this term (in preference to the MCA’s term ‘P’) ‘to remind readers that we are talking about a real
person here rather than just an anonymous “P”’ (p. 1).
2See for example Wye Valley NHS Trust v. B[2015] EWCOP 60; Briggs v. Briggs [2016] EWCOP 53; RAO v. ROO [2018]
EWCOP 33.
3T. Bin gham, The Rule of Law (2010).
4M. Hedley, TheModern Judge: Power, Responsibility and Society’s Expectations (2016) 6.
5On some of these, see C. Kong et al. (eds), Capacity, Participationand Values in Comparative Legal Perspective (2023).
© 2023 The Author.Journal of Law and Society © 2023 Cardiff University Law School.
594 wileyonlinelibrary.com/journal/jols J.Law Soc. 2023;50:594–597.
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