The context- and person-specific nature of the Mental Capacity Act 2005 (MCA) in England and Wales means inherent indeterminacy characterises decision-making in the Court of Protection (CoP), not least regarding conflicting values and the weight that should be accorded to competing factors. This paper explores how legal professionals frame and influence the MCA's deliberative and adjudicative processes in the social space of the courtroom through a thematic analysis of semi-structured interviews with legal practitioners specialising in mental capacity law and retired judges from the CoP and the Courts of Appeal with specific experience of adjudicating mental capacity disputes. The concept of the ‘human element’ offers important new insight into how legal professionals perform their roles and justify their activities in the conduct of legal proceedings. The ‘human element’ takes effect in two ways: first, it operates as an overarching normative prism that accounts for what good practice demands of legal professionals in mental capacity law; secondly, it explains how these professionals orientate these norms in the day-to-day conduct of their work. The ‘human element’ further presents challenges that demand practical negotiation in relation to countervailing normative commitments to objectivity and socio-institutional expectations around professional hierarchies, expertise, and evidential thresholds.

The Court of Protection has the legal jurisdiction to make decisions about people who lack capacity to make decisions themselves (in England and Wales). When hearing cases, evidence can be provided to the court by expert witnesses and professionals. The Court of Protection Rules 2017 inform the practice and procedure within the Court of Protection. This article reviews the judgment from a Court of Protection case that analyses the proper role of the expert witness in the court. In doing so the article provides guidance to authors of expert witness reports and reports under section 49 of the Mental Capacity Act 2005 submitted as evidence to the court.

This article reviews a 2017 Court of Protection case which assessed and decided issues relating to the Islamic faith and the Mental Capacity Act 2005. The case involved a 39-year-old Muslim man with learning difficulties. It centred on his ability to make decisions about two specific aspects of his faith – capacity for fasting and for the removal of pubic and axillary hair. The judgment describes how s.4 of the Act was applied in deciding these decisions under the doctrine of best interests. In doing so, it elucidates key principles which can be applied to similar cases of this and other faiths.

This article engages with emerging debates in law and feminist philosophy around the concept of vulnerability. Central to this is the call to re-imagine and re-frame vulnerability as universal – as something which is experienced by all individuals, by virtue of their humanity and context as social beings. The implications of this for laws and policies predicated on groups or categories as ‘being vulnerable’ will be explored in this article, using the concept of mental capacity as an example of how the boundary between capacity and incapacity can be contested through this lens. The article will critically consider the Mental Capacity Act 2005 and associated literature, such as Court of Protection cases, the House of Lords Select Committee's post-legislative scrutiny and Serious Case Reviews, which demonstrate the growing concern about the inadequacy of the binary between capacity and incapacity. This in turn provokes a challenge to accepted wisdom in the context of disability more broadly, inviting us to think in particular about the responses to perceived vulnerability that are currently deemed appropriate. Insights from the legal literature invite further exchanges with social policy theorists as to the concept of vulnerability and its challenges and implications for law and policy.