Testimonial Injustice and Vulnerability: A Qualitative Analysis of Participation in the Court of Protection
| Author | Jaime Lindsey |
| DOI | 10.1177/0964663918793169 |
| Published date | 01 August 2019 |
| Date | 01 August 2019 |
Article
Testimonial Injustice
and Vulnerability:
A Qualitative Analysis
of Participation
in the Court of Protection
Jaime Lindsey
University of Essex, UK
Abstract
This article explores participation in Court of Protection (COP) proceedings by people
considered vulnerable. The article is based on original data obtained from observing
COP proceedings and reviewing COP case files. It is argued that the observed absence of
the subject of proceedings is a form of testimonial injustice, that is, a failure to value a
person in their capacity as a giver of knowledge. The issue of competence to give evi-
dence is considered but it is argued that it is not the formal evidential rules that prohibit a
vulnerable adult from giving evidence. Instead, it is the result of a persistent assumption
that they are inherently vulnerable and therefore lack credibility as a knowledge giver.
This assumption results in the voices of vulnerable adults being routinely absent from
legal proceedings. It is argued that having a voice in the courtroom is essential and has a
number of intrinsic and instrumental benefits. The article concludes with a discussion
about the implications of the research, including the current trend towards the increased
use of special measures, and recommends a presumption in favour of the subject of COP
proceedings giving evidence.
Keywords
Court of Protection, evidence, legal proceedings, mental capacity, participation, testi-
monial injustice, vulnerability
Corresponding author:
Jaime Lindsey, Essex Law School, University of Essex, Wivenhoe Park, Colchester CO4 3SQ, UK.
Email: j.t.lindsey@essex.ac.uk
Social & Legal Studies
2019, Vol. 28(4) 450–469
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0964663918793169
journals.sagepub.com/home/sls
Introduction
The value of participation has been recognized across a range of legal contexts from
criminal to family to human rights law. Involving people in decisions that affect them
better respects their autonomy and may alter the outcome. Despite the benefits, a parti-
cipatory approach has not sufficiently taken hold in mental capacity law. The Mental
Capacity Act (MCA) 2005 allows for decisions to be made on behalf of adults where
they lack the capacity to make decisions for themselves. Under sections 2-3 MCA, a
person may be found to lack capacity to make a decision if they have ‘an impairment of,
or disturbance in the functioning of, the mind or brain’ which means they are unable to
understand, retain, or use or weigh the information relevant to the decision or commu-
nicate that decision to others. If a person lacks capacity, a decision can be made on that
adult’s behalf in their best interests (section 1(5) and section 4 MCA). The Court of
Protection (COP), the court that deals with disputes under the MCA, therefore makes
decisions that can have a profound impact on a person’s life, ranging from decisions
about medical treatment to decisions about where to live and who to marry. The COP
even has the power to make a prospective statement that, for example, a person lacks the
capacity to engage in sexual activity whereas the criminal law cannot prevent a person
from engaging in sex except to the extent they are imprisoned.
1
Therefore, the mental
capacity law jurisdiction is an important site of research because of the restrictive
interventions that can result.
There have been discussions around participation under the MCA since it came into
force, including analyses of the participatory potential of the best interests approach and
the challenges of implementing participation (Butler-Cole and Hobey-Hamsher, 2016;
Donnelly, 2009; Series et al., 2017). This article builds on those discussions specifically
focusing on the participation of the subject of COP proceedings, referred to as ‘P’, using
original data obtained from my observational research at the COP. The subject matter of
the cases analysed covers capacity to consent to sex, capacity to marry and capacity to
decide on contact with others. This is the first published qualitative study of participation
in the COP, which is the court that resolves disputes under the civil law framework of the
MCA. Historically, the COP has been a private court and only recently have the public
been granted access, initially via the COP Practice Direction – Transparency Pilot and a
subsequent change in the Court of Protection Rules 2017. This research therefore sheds
light on a previously concealed area of practice and provides an original insight into COP
proceedings to highlight the injustice of P’s limited participation.
The reasons underpinning the value of participation are explored in the first part of
this article before the methods used for the research are outlined. Following that, I frame
the conceptual approach of the article through a lens of testimonial injustice and vulner-
ability. Developing the link between testimonial injustice and vulnerability theory, I
identify and critique P’s absence from proceedings as a form of testimonial injustice,
which is the failure to value a person in their ‘capacity as a giver of knowledge’ (Fricker,
2007: 7). I further explore the reasons why P is absent from COP proceedings, focusing
on the cultural assumption that P is especially and inherently vulnerable. This culture of
the court process frames mentally disabled witnesses as lacking in credibility and as
especially harmed by attending court. The article concludes with a discussion about the
Lindsey 451
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