Competing Professional Knowledge Claims About Mental Capacity in the Court of Protection

Abstract

This article analyses the role of evidence in resolving Court of Protection proceedings, drawing on qualitative data obtained from observations of the Court of Protection, a review of Court of Protection case files and interviews with social workers. It is argued that there is a hierarchy of professional evidence in mental capacity law. Psychiatric evidence is at the top of this hierarchy whereas social work evidence is viewed as a less persuasive form of knowledge about mental capacity. The article argues that this is because mental capacity law views psychiatric evidence as a form of objective and technical expertise about capacity whereas social work evidence is viewed as a form of subjective, experiential knowledge. In challenging this hierarchy, it is instead argued that mental capacity law should place greater weight on experiential knowledge emanating from a relationship with the subject of the proceedings, rather than elevating the status of psychiatric evidence about mental capacity.

Social work expertise, best interests and the court of protection

“…While social workers are sometimes appointed as independent experts, it is much more common for those with psychiatry or clinical psychology expertise to be appointed, despite criticisms of this approach (Lindsey, 2020). While we recognise that social workers may not be the most appropriate "expert" on issues of diagnosis of mental disorder, we argue that social workers are well placed to be instructed as independent experts on best interest decision-making, particularly in welfare cases.…”

“…Shoesmith (2016) argues that a recurrent emphasis on "incompetence" developed a narrative that social workers are blind-sighted by collusion with the "under-class" and that social work tasks would be better conducted by non-social work personnel who would make rational and, therefore, better decisions (Jones, 2014;Shoesmith, 2016). In the context of our research focus, mental capacity law and adult protection, this "incompetence" narrative is perhaps best contrasted with the narrative of the medical expert, where "doctor knows best" and law's deference to the medical profession is well documented (Lindsey, 2020). While there has been a tendency in some arenas to see mental capacity law as a strata of "medical law", actually many mental capacity disputes involve social care provision by local authorities and social workers are often engaging with questions of capacity in their everyday roles (Keeling, 2017).…”

“…Turning to our analysis of reported CoP judgments next, we read and analysed reported CoP case law publicly available on the British and Irish Legal Information Institute (BAILII) for cases that refer to or include reference to social work evidence. From our analysis, we have identified key examples of cases where social work evidence was referred to by the judge, notwithstanding the known weaknesses of relying on reported judgments alone in this area (Lindsey, 2020). The first case is London Borough of Brent v NB, [3] which concerned capacity to make a decision about accommodation, the case involved a young man whose care team deemed him appropriate for a residential rehabilitation placement.…”

“…However, they are much less commonly used as court appointed independent experts in CoP proceedings, even where the case raises adult protection issues. It has been argued that this is because social workers struggle to fit the narrative of the objective medical expert, instead being viewed as a more subjective form of knowledge, thereby undermining their claim to expertise (Lindsey, 2020). In this article, we continue this argument to claim that social workers are particularly well placed to be instructed as experts on best interests in CoP proceedings, highlighting the ways in which their evidence can be effective and represent good practice for a CoP expert, within the range of their training and responsibilities.…”

“…While we think this rightly highlights social work expertise on best interests, in some senses, this approach to social worker expertise as being about service provision such as care planning reinforces its status as lower in the hierarchy of expertise. As Lindsey has explained, medical, particularly psychiatric experts, have more readily had their evidence accepted by the CoP as 'objective' and 'technical' expertise (Lindsey, 2020). Whereas social workers' evidence is relegated to more 'subjective' and 'experiential' in nature.…”