Mental Capacity, Disability, and ‘Voice’: A Socio-Legal Exploration 

By Gill Loomes-Quinn, 4th October 2023

Editorial Note: Many congratulations to Gill Loomes-Quinn, co-director of the Open Justice Court of Protection Project, who successfully defended her PhD thesis “Mental Capacity, Disability and ‘Voice’: A socio-legal exploration” at her viva (oral examination) on Monday 2nd October 2023. Her PhD research was supervised by Anna Lawson and Celia Kitzinger and examined by Chrissie Rogers and Amanda Keeling.This blog post is the 3-minute introductory summary with which she opened the viva. Congratulations from all of us to Dr Loomes-Quinn!

Summary of PhD by Gill Loomes-Quinn

 My thesis is a socio-legal study of the Mental Capacity Act 2005 (“the MCA 2005”) in practice. It develops and employs an analytic framework of “social voice” to explore how socio-legal practices inscribed by mental capacity law impact the lives of disabled people – particularly those deemed to lack the mental capacity to make specific decisions.

Study Outline

I carried out qualitative research comprising two studies of the construction of “social voice” as it relates to the MCA 2005: 

1. Firstly, I used thematic analysis of a dataset of 15 semi-structured interviews with disabled activists to explore participants’ views on the advance care planning provisions set out in the MCA 2005. 
2. The second study is an ethnography of the work of the Court of Protection. I observed 14 hearings and interviewed professional stakeholders. From this, I developed case studies of two hearings: the first a challenge under the Deprivation of Liberty Safeguards (DoLS) and the second an application for property and affairs deputyship. 

Key Findings

• I found that “Social voice” offers an analytic framework through which to examine the intersubjective nature of relationships between the State and minoritised, socially marginalised demographic groups (such as disabled people) in the context of legislative developments.

• In practices concerned with the MCA 2005, I found that factors such as disability discrimination, accessibility, and public welfare/resource issues function alongside discourses of law and legality in the construction and regulation of relationships between the individual, the State, and wider society.

• In exploring how disabled activists engage law and legality in their views on advance care planning under the MCA 2005, I found they had several disability-specific concerns, including discrimination and ‘ableist’ social attitudes. A role for Disabled People’s Organisations (DPOs) in facilitating access to advance care planning under the MCA 2005 was indicated. 

• The ethnographic study of the Court of Protection produced ‘thick description’ accounts of the “social voice” of two classes of social actor – a ‘protected party’ and a Litigant in Person. My findings point firstly to structural and procedural barriers affecting the participation of the ‘protected party’ and describe the role of key people in mitigating their effects. In observing the involvement of the Litigant in Person in a court hearing, a tension was identified between the policy-identified responsibility of the judge to mitigate against procedural disadvantages faced by the litigant, and the court’s overriding concern for the best interests of the ‘protected party’.  

Significance and Implications

This thesis offers an analytic framework for empirical socio-legal study of the impact of law on the relationship between the individual and the State – with particular focus on the intersubjective nature of law in (and as) practice.

It also points to ways for disabled people and our organisations to include in our activism the experiences and concerns of those in our community deemed to lack mental capacity. And, perhaps most fundamentally, contributing to the articulation of what it means to “have a voice” it offers tools for resistance when this “voice” is threatened. 

Gill Loomes-Quinn is a disabled scholar-activist, and co-director (with Celia Kitzinger) of the Open Justice Court of Protection Project. She is also proud to be a convenor of the Participatory Autism Research Collective (PARC). Gill tweets @GillLoomesQuinn