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.

This article explores participation in Court of Protection (COP) proceedings by people considered vulnerable. The paper 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 evidence 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 paper 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.

As one of the first researchers authorised to observe hearings and access court files at the Court of Protection, Jaime Lindsey offers an original account and analysis of the workings of this court. Using data collected with the approval from the senior judiciary of the Court of Protection and the Ministry of Justice, this innovative book combines empirical data with theoretical and normative analysis. It takes a socio-legal approach to understanding how the Mental Capacity Act operates in practice to achieve access to justice and situates current debates within an international context, showing how other jurisdictions have been guided by the United Nations Convention on the Rights of Persons with Disabilities. Furthering scholarship across several fields including access to justice, healthcare law and procedural justice theory, this is a timely and pioneering book that argues for a reimagining of the Court of Protection.

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This article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity. The capabilities approach to justice is then used to demonstrate the limitations of the existing legal approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non‐consensual sex and exploitation. Finally, the article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.