Testimonial Injustice and Vulnerability: A Qualitative Analysis of Participation in the Court of Protection

Lindsey, Jaime

doi:10.1177/0964663918793169

Cited by 11 publications

(12 citation statements)

References 26 publications

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“…Such concerns might reflect status-based assumptions about the inherent psychological and epistemic vulnerabilities of people with mental illness and intellectual disabilities by those without lived experience of such conditions. 23 , 24 For instance, respondents did not express any concerns about potential emotional distress from discussing disturbing memories and topics while drafting a self-binding directive, and concerns about undue influence, or about self-binding directives hampering clinical judgment, were raised in only 12 responses. Respondents appeared ready and able to articulate details about their illness and its effects on their thinking and decision making, and to understand these effects with great insight and clarity.…”

Section: Discussionmentioning

confidence: 99%

Reasons for endorsing or rejecting self-binding directives in bipolar disorder: a qualitative study of survey responses from UK service users

Gergel

Das

Owen

et al. 2021

The Lancet Psychiatry

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Background Self-binding directives instruct clinicians to overrule treatment refusal during future severe episodes of illness. These directives are promoted as having the potential to increase autonomy for individuals with severe episodic mental illness. Although lived experience is central to their creation, the views of service users on selfbinding directives have not been investigated substantially. This study aimed to explore whether reasons for endorsement, ambivalence, or rejection given by service users with bipolar disorder can address concerns regarding self-binding directives, decision-making capacity, and human rights.Methods This qualitative study used data from an internet-based survey distributed to the mailing list of the UK charity Bipolar UK, which contained multiple closed and open questions on advance decision making for patients with bipolar disorder. We included participants who reported that they have been diagnosed with bipolar disorder by a professional (doctor or psychiatrist). In a previous study, quantitative analysis of a closed question about self-binding directives had shown endorsement among a high proportion of participants with bipolar disorder who completed the survey. In this study, we did a thematic analysis of responses from those participants who answered a subsequent open question about reasons for their view. Research was done within a multidisciplinary team, including team members with clinical, legal, and ethical expertise, and lived experience of bipolar disorder. Ideas and methods associated with all these areas of expertise were used in the thematic analysis to gain insight into the thoughts of individuals with bipolar disorder about self-binding directives and associated issues.

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Section: Discussionmentioning

confidence: 99%

Reasons for endorsing or rejecting self-binding directives in bipolar disorder: a qualitative study of survey responses from UK service users

Gergel

Das

Owen

et al. 2021

The Lancet Psychiatry

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“…In some cases, P was said to be unfit to attend the court and this was specifically acknowledged in the judgment, for example in King's College Hospital v C, para 58: “I have not had the opportunity to meet C. She is too ill to attend court and given the need for an urgent decision to be made in this case there has not been time to arrange for me to attend hospital to meet with her.” However, in other cases it is not clear whether any specific consideration had, in fact, been given to the question of whether P should speak directly to the judge (either at court or by the judge visiting them). In her recent qualitative analysis of participation, based on observation of Court of Protection proceedings and reviewing Court of Protection files, Lindsey argues that P's absence from proceedings is a form of injustice, underpinned by the persistent stereotyping of mentally disabled adults as inherently vulnerable (Lindsey, 2018).…”

Section: Discussionmentioning

confidence: 99%

Taking capacity seriously? Ten years of mental capacity disputes before England's Court of Protection

Keene

Kane

Kim

et al. 2019

International Journal of Law and Psychiatry

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Most of the late 20th century wave of reforms in mental capacity or competence law were predicated upon the so-called ‘functional’ model of mental capacity, asking not merely whether a person had a mental disorder or disability but rather whether they were capable of making a specific decision (or decisions) at a specific point of time. This model is now under sustained challenge, most notably from the Committee on the Rights of Persons with Disabilities, and this challenge has focused a spotlight on the difficulty of applying the legally ‘neat’ concepts of the functional model of mental capacity across the full complex spectrum of human life.This paper presents a review, in two parts, of the first ten years of the Court of Protection, a specialist mental capacity court in England and Wales which applies a functional model of mental capacity.The first part outlines the history of the functional model in England and Wales, and the development of this specialist mental capacity court (Court of Protection), created by the Mental Capacity Act 2005. The second part presents an empirical and case-based study of 40 published cases of capacity disputes presented to the Court of Protection, or to the Court of Appeal on appeal from the Court of Protection, during the first ten years of its existence.The authors found that in 70% of cases the subject of proceedings (or P) had either a learning disability or dementia, and the court ruled on P's capacity for a wide range of issues, most commonly residence, care and contact. The judge considered the support principle, or whether practical steps were taken to maximise P's capacity, in 23 of 40 (57.5%) cases. The subject P was determined to have capacity in 13 cases, to lack capacity in 22 cases, and in 5 cases P was found to have and lack capacity for different issues before the court. The functional inability to use or weigh relevant information was most commonly cited by the judge, being cited in all but 2 cases in which P was determined to lack capacity and inabilities were cited. The propensity for the system to learn was shown by an increase in the proportion of cases which considered the ‘causative nexus’ from 2013, when a Court of Appeal case emphasised that impairment must not merely be present alongside functional inability but must be the causal basis of inability.The authors conclude that whilst the Court of Protection is still on a learning curve, its work provides a powerful illustration of what taking capacity seriously looks like, both inside and outside the courtroom. The implications for judges, lawyers and psychiatrists that can be drawn from the study are generalisable to other comparable socio-legal frameworks in which mental capacity or competence plays a role and is likely to do so for the foreseeable future.

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“…Bell, 2014; Bourgault, 2020; Doan, 2017; Iacono, 2017; Lee et al, 2019) have used the concepts of epistemic injustice more than have their counterparts in sociolegal studies (compare, e.g. Lindsey, 2019; Tsosie, 2012). Although theorists still debate how best to identify or characterize the harms of testimonial injustice (see, e.g.…”

Section: Approachmentioning

confidence: 99%

Indigenous parents and child welfare: Mistrust, epistemic injustice, and training

Leckey¹,

Schmieder-Gropen²,

Nnebe

et al. 2021

Social & Legal Studies

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The settler state's taking of Indigenous children into care disrupts their communities and continues destructive, assimilationist policies. This article presents the perceptions of lawyers, social workers and judges of how Indigenous parents experience child welfare in Quebec. Our participants characterized those experiences negatively. Barriers of language and culture as well as mistrust impede meaningful participation. Parents experience epistemic injustice, wronged in their capacity as knowers. Mistrust also hampers efforts to include Indigenous workers in the system. Emphasizing state workers’ ignorance of Indigenous family practices and the harms of settler colonialism, participants called for greater training. But critical literature on professional education signals the limits of such training to change institutions. Our findings reinforce the jurisdictional calls away from improving the system towards empowering Indigenous peoples to run services of child welfare. The patterns detected and theoretical resources used are relevant to researchers of other institutions that interact with vulnerable populations.

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Testimonial Injustice and Vulnerability: A Qualitative Analysis of Participation in the Court of Protection

Cited by 11 publications

References 26 publications

Reasons for endorsing or rejecting self-binding directives in bipolar disorder: a qualitative study of survey responses from UK service users

Reasons for endorsing or rejecting self-binding directives in bipolar disorder: a qualitative study of survey responses from UK service users

Taking capacity seriously? Ten years of mental capacity disputes before England's Court of Protection

Indigenous parents and child welfare: Mistrust, epistemic injustice, and training

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