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Learning from Our Experience 2: Communication, Capacity and Clarity

Reflections on Making Law Accessible 

A photo of Rosie HardingIn this Blog, extracted from the CLARiTY Project Report, Professor Rosie Harding reflects on her experiences of telling stories from research to bring law to life for disabled people and family carers.

Throughout my academic career, I have been telling stories. A few of these stories have been about my own experiences, but as an empirical social-legal researcher, most are drawn from stories other people have told me about their lives. I’ve been doing research on legal issues around capacity and care for over a decade, and in that time I have heard stories from people living with dementia, people with acquired brain injuries, people with learning difficulties, family carers and health and social care professionals. My research has explored:

  • how disabled people and carers experience the regulatory frameworks that govern their lives;
  • how disabled people secure the support they need and want to help them live the lives they want to live;
  • how family carers navigate the complexities of gaining and using Lasting Power of Attorney for their loved ones; and
  • how health and social care professionals navigate the regulatory landscape of their profession.

In doing this research, I have heard many stories about how people use and experience law as it relates to ‘capacity’.

In the CLARiTY project, I used some of these stories to help introduce legal concepts and frameworks to our session participants. So, for example, I told a story about why Alex, a young autistic man, decided to register Lasting Powers of Attorney so that his mum could help him with his financial affairs (to help with budgeting) and for his health and welfare (because his autism means he really struggles to communicate in healthcare appointments). Using stories in this way helped our participants to understand what the legal tools we were talking about could do, and to relate them back to their lives.

Our second CLARiTY session was about supported decision-making. I’m really interested in how supported decision-making works both in law and in practice – my Everyday Decisions research was focused on this,[1] and I’ve also looked in detail about how best to regulate support for making a will.[2] One of the things that I have consistently found in my research is that we do not yet pay enough attention to the importance of support in enabling capacity. In the Everyday Decisions project, we found that whilst support for daily choices (what to wear, what to eat, where to go, what to do) was often done well, as soon as decisions became more complicated, support was less, rather than more, available.[3] Since then, I have spent a great deal of time thinking about why that might be, and what needs to be done to improve decision-making support to maximise disabled people’s capacity.

Support for decision-making has been a part of English law since the Mental Capacity Act 2005 came into force in 2007. It is the second fundamental principle of the MCA – nobody should be considered unable to make a decision unless all practicable support to help them do so has been given without success. The disabled participants in our second CLARiTY session were really clear and vocal about the importance of support to help them live their lives. All too often, disabled people are excluded from decisions about their lives, especially when those decisions involve law, lawyers and legal concepts.

One of my aims in working with Sophie, Philipa and Bringing Us Together on the CLARiTY Project was to understand why support seems to stop at everyday decisions; why there is not more accessible information available to support more complex decision-making. My experience in the project, of translating legal frameworks that I know well into accessible information that I can communicate to others, has given me greater insight into the implementation challenges in this area. It has also strengthened my resolve to make the case for greater levels of accessibility in public legal information.

Throughout the project, I found myself reflecting on how we teach future legal professionals to communicate about law. Clinical legal education holds an increasingly important place in law schools, often giving law students opportunities to develop client communication skills, under the supervision of qualified solicitors. As changes to legal education catalysed by the new Solicitors’ Qualifying Examination framework begin to shape and change educational practice in law schools, I hope to see much more attention to the importance of accessible communication as a vital part of legal services.

Rosie Harding, November 2021

Find out more about the CLARiTY Project

[1] R. Harding and E. Taşcıoğlu, Everyday Decisions Project Report: Supporting Legal Capacity through Care, Support and Empowerment (University of Birmingham, 2017)

[2] R. Harding, E. Taşcıoğlu and M. Furgalska, Supported Will-Making: A Socio-Legal Study of Experiences, Values and Potential in Supporting Testamentary Capacity (University of Birmingham, 2019)

[3] R. Harding and E. Taşcıoğlu, ‘Supported Decision-Making from Theory to Practice: Implementing the Right to Enjoy Legal Capacity’ (2018) 8 Societies 25

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