The Use of Neuroscience and Psychological Measurement in England’s Court of Protection – Andrew McWilliams

Workstream 5
29 Apr, 2019

Oral presentation at the International Spring School for Human Rights and Mental Health, University of Bochum. April, 2019.

McWilliams A, Fleming S.M., David A. S., Owen G.

The 2005 Mental Capacity Act of England and Wales established a new Court of Protection (CoP) to hear cases related to the Act and to rule on disputes over mental capacity. The court gathers a range of evidence, including reports from clinicians and experts.

This observational study describes use and interpretation of structured measures of psychological and brain function in CoP cases, to facilitate standardisation and improvement of practices, both in the courtroom and in non-legal settings. 408 published judgments contained 146 references to structured measurement of psychological or brain function, spread over 50 cases. When assessing incapacity, IQ and the Mini-Mental-State Examination were the commonest measures. A standardised measure of mental capacity itself was employed just once and judges rarely integrated measurements in their capacity determinations.

Whilst there are challenges in creating measures of capacity, we highlight an opportunity for the neuroscience community to improve objectivity in assessment, inside and outside the courtroom.