Alex Ruck Keene Congress, Capacity and QR codes

Alex Ruck Keene QC (Hon) shares his thoughts (and a QR code) in advance of his presentation at the World Congress on Adult Capacity in Edinburgh on Tuesday 7-Thursday 9 June 2022. Alex is a member of our Mental Health and Disability Committee.

As I write, I am making my final preparations to deliver a presentation on support for the exercise of legal capacity before the English courts at the World Congress on Adult Capacity (‘WCAC’). It still feels slightly unreal to be making preparations to travel to deliver an actual talk before actual people – memo to self: must remember that it’s not as acceptable to wear shorts when giving a live presentation as one on Zoom. Selfishly, as a London-based lawyer, academic and law reformer, that WCAC is taking place in Scotland is a golden opportunity to engage in one of my favourite activities – comparing and contrasting approaches to adult capacity law – with others from across the world, in a different jurisdiction, and all just a train-ride away.

And, as ever, preparing to give a talk about the law in England & Wales for an audience who will (I hope!) be for the most part from other jurisdictions is a fantastically useful discipline. It requires you to rise above the minutiae of purely domestic statutes, cases and concerns, and to find ways to explain the essence of the law, its promise, and its pitfalls. This time, and drawing in part upon work completed as part of the Wellcome-funded Mental Health and Justice project, I am seeking to use the significant and growing body of case-law emanating from the Court of Protection (considerably more than from courts in most other jurisdictions) to tease out some of the tension points in support for the exercise of legal capacity.

Such support is mandated by Article 12(4) of the UN Convention on the Rights of Persons with Disabilities, to enable the enjoyment of the right to legal capacity by all – irrespective of disability – on an equal basis. Often misunderstood as, or improperly narrowed down to, support for decision-making, I will be using cases decided before Court of Protection to look at such matters as how advance decision-making can constitute support for the exercise of legal capacity. As both a practitioner before and – I hope – a suitably critical academic friend of, the Court of Protection, it will be an interesting challenge to relay a picture of the court and its work that is sufficiently clear, concise and nuanced to stimulate discussion in the session: discussion always being, by far, the most interesting part. And, of course, it will be an interesting exercise to do so speaking at the same conference as the Senior Judge of the Court of Protection, Carolyn Hilder…

Finally, in an attempt to put the past two years behind us, I am going to see whether I can use a QR code for something other than the (hopefully past-tense) exercise of checking in at a venue for COVID-19 control purposes. Rather, I’m using one to link to a reading list produced for the presentation. Indeed, I’m sufficiently enthusiastic about the idea, and think it may also contain sufficiently useful information for people wanting to know more about capacity law in England & Wales, that I’m even happy to have it reproduced here – if you want to hear it all put into context, though, you’ll have to register and attend (there’s still, just, time).