November 2018 saw the prescription of unlicensed medicinal cannabis products being legalised in the UK, accompanied by loud media fanfare. One year on, it seems that access to medicinal cannabis in this country continues to be extremely rare, raising questions about what might be stopping doctors from making use of the legal space to prescribe. This commentary explores some of these questions, outlining the theoretical space for legal prescribing and examining whether the recently announced National Institute for Health and Care Excellence guideline does anything to ease the deadlock.

A finding that ‘P’ (as the person who is subject to Court of Protection proceedings is known) lacks mental capacity is the trigger for exposing them to decision-making by others and the powers of the Court of Protection (CoP) which, in the words of Justice Hedley, can be ‘invasive and draconian’ (Hedley J in PC v City of York Council cited in [2013] EWCA Civ 478 [13]). Whilst the law asserts the upper hand in the assessment of mental capacity for persons who come before the CoP, it is the discipline of psychiatry, which dominates expert witness testimony in these proceedings. There are a number of implications of allowing psychiatry to dominate this terrain, not least that, as will be argued in this article, clinical discourse, which makes reference to non-statutory terminology such as ‘lack of insight’ and ‘non-compliance’ are imported into the business of capacity assessment. This terminology, if used lazily and without clear reference to the statutory criteria, has the potential to muddy the waters of assessing P’s capacity. At its worst, it can mask value judgements, which threaten to undermine the law’s ‘autonomy promoting’ provisions set out in the Mental Capacity Act 2005. Whilst it is not intended to discredit ‘insight’ as a concept in psychiatry, this article concludes that it has a proper context and that in the mental capacity context, decision-makers, lawyers, and advocates should exercise careful scrutiny of its use, and CoP judgments should carefully interrogate the language imported by expert witnesses.

The ‘elusive’1 concept of ‘impairment’ was introduced into the General Medical Council's Fitness to Practise Procedures in 2002. Its function was ostensibly to bring all forms of fitness to practise allegations against doctors under a unifying concept and thereby reduce procedural complexity. This paper strives to illuminate the application of ‘impairment’ of fitness to practise with reference to a year of fitness to practise decision making by the General Medical Council (GMC). It concludes that impairment has brought with it a redemptive style of resolving matters of professional discipline which brings significant benefits to doctors, the patient population and society as a whole, but which can also encourage a contrived exchange of remorse, insight and remediation with further implications for professional integrity and truth.

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The panel imposing the order is not charged with determining whether the allegations are in fact true: R on the application of Ali v General Medical Council [2008] EWHC 1630 (Admin). 2 Fifth Shipman Report: Safeguarding Patients: Lessons from the Past-Proposals for the Future. (2004) at 18.42. The first Shipman report concluded that Harold Shipman had probably killed more than 200 other patients, additionally to those that the jury had convicted him of murdering: First Shipman Report: Death Disguised (2002). The Shipman reports are available at ,http://www.the-shipman-inquiry.org.uk/reports.asp.. 3 S 41A of the Medical Act 1983 currently provides that an interim order is available 'for the protection of the public' or 'otherwise in the public interest' and may be issued for up to eighteen months, being thereafter renewable indefinitely provided court approval is first obtained.