As well as the reports that you can download from the project findings page, and the CLARiTY Project report there are a number of publications based on the findings from this research, and on associated legal and theoretical research. Members of the research team also regularly speak at conferences and other academic events, discussing findings from this research.
Articles and Book Chapters:
Please be aware that these are academic articles, so may not be accessible to all readers.
Harding, R. (2021) ‘COVID-19 in Adult Social Care: Futures, Funding and Fairness’ in D. Cowan & A. Munford (eds) Pandemic Legalities: Legal responses to COVID-19: Justice and social responsibility pp119-130 (Bristol University Press).
Abstract: This short chapter explores the impact of COVID-19 on adult social care. It argues that a new model for adult social care, which focuses on fairness rather than profit is the only way to create a stable, safe and sustainable social care sector for the future.
Keywords: COVID-19; social care; funding.
Lindsey J.T. & Harding, R. (2021) ‘Capabilities, Capacity and Consent: Sexual Intimacy in the Court of Protection’ Journal of Law and Society.
Abstract: This article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity. The capabilities approach to justice is then used to demonstrate the limitations of this approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non-consensual sex and exploitation. Finally, the paper argues that, rather than focusing on a medicalised approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people realise their rights to sexual intimacy.
Keywords: Capacity; Consent to Sex; Court of Protection
Access: Published online. Fully Open Access.
Harding, R. (2021) ‘“He got down on one knee”: Intellectual disability, intimacy and family law’ in B. Clough & J. Herring (eds) Disability, Care and Family Law pp156-181 (London: Routledge).
Abstract: This chapter draws on interviews with intellectually disabled people about their experiences of everyday legally relevant decision-making to explore the multiple socio-legal dimensions of decision-making around intimate relationships and marriage by intellectually disabled people (here understood to include people with learning disabilities, brain injuries and other cognitive impairments). After a brief introduction and methodological note, I contrast legal responses to sexual relations, marriage and divorce with disabled people’s stories about how these things have influenced their lives. Through this analysis, I challenge the construction of disabled people as vulnerable subjects, to be protected by and through family law. Instead, I argue for accessible family law frameworks that allow disabled people to enjoy their legal rights, relationships and family lives.
Keywords: family law, capacity, marriage, sexual relationships.
Harding, R. (2020) ‘Challenging Capacity: Shifting paradigms of intellectual disability across law, medicine and society’ in M. Jacob and A. Kirkland (eds) Research Handbook for Socio-Legal Studies of Medicine and Health pp. 52-69 (Cheltenham: Edward Elgar)
Abstract: This chapter interrogates the challenges posed by the paradigm shift sought by the UN Convention on the Rights of Persons with Disabilities. The author explores three contrasting shifts that are present in the literature to date: from the medical model to the social model of disability; from best interests to ‘will and preferences’; and from mental capacity to legal capacity. In analysing these different potential shifts in the paradigm of disability in law, medicine and society research, the chapter argues that it is the shift from mental to legal capacity that holds the greatest transformative potential. The chapter concludes that realising this potential poses a set of conceptual and practical challenges for law, medicine and society scholarship including significant disruptions to conventional understandings of legal subjectivity and legal personhood.
Keywords: mental capacity; legal capacity; UN Convention on the Rights of Persons with Disabilities; medical model; social model; best interests.
Harding, R. & Tascioglu, E. (2020) ‘“That’s a bit of a minefield”: Supported decision-making in intellectually disabled people’s intimate lives’ in C. Ashford and A. Maine (eds) Research Handbook on Gender, Sexuality and Law (Cheltenham: Edward Elgar).
Abstract: In this chapter, we explore the issue of support for intellectually disabled people in developing intimate relationships within the constraints of the regulatory position set out in the Mental Capacity Act 2005 and the Sexual Offences Act 2003. Through analysis of empirical data from qualitative interviews with disabled people and health and social care professionals, we explore the interconnection of autonomy, vulnerability, empowerment and protection in this complex area. We argue that law and practice in this area needs to step back from focusing only on protectionist responses, which can exacerbate the problem. We propose, building on our empirical data, that we need instead to move towards discourses and practices that help support the autonomy of intellectually disabled people whilst recognising their vulnerability.
Keywords: autonomy; disability; interview research; mental capacity; relationality; vulnerability
Harding, R. & Peel, E. (2019) ‘Polyphonic Legality: Power of Attorney in Dialogic Interaction’ Social & Legal Studies 28(5): 675-697. https://doi.org/10.1177/0964663918803409.
Abstract: Building on Bakhtin’s work on discourse, this article uses the concept of polyphony to explore capacity law praxis. Drawing on everyday interaction about power of attorney, we demonstrate how legal, lay and medical understandings of capacity operate dialogically, with each voice offering distinct expressions of legality. Analysing lay and medical interactions about Lasting Power of Attorney – the legal authority to make decisions on behalf of a person who loses the mental capacity to make their own decisions – we argue power of attorney holds a ‘polyphonic legality’. We argue that legal concepts (like power of attorney) are constructed not solely through official law but through dialogic interaction in their discursive fields. We suggest ‘polyphonic legality’ offers an innovative approach to understanding how law works in everyday life, which is attentive to the rich texture of legality created by and through the multiple voices and domains of socio-legal regulation.
Keywords Capacity law, conversation analysis, dementia, law in action, polyphony, power of attorney
Access: Author’s Pre-Publication version available through the University of Birmingham repository. Version of Record: https://journals.sagepub.com/doi/10.1177/0964663918803409.
Abstract: The right to equal recognition before the law, protected by Article 12 of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD), mandates the use of supported decision-making practices to enable disabled people, particularly those with intellectual and/or psychosocial disabilities, to enjoy their legal capacity. Finding ways to translate this theoretical mandate into practice poses a number of particularly challenging socio-legal issues, which this research seeks to address. The English Mental Capacity Act 2005 (MCA) sets out a right to support with decision-making (s.1(3)), underpinned by a presumption of capacity (s.1(2)). Qualitative interviews with intellectually disabled people, their supporters, and care and support professionals were undertaken to explore how disabled people make decisions in their everyday lives, the kinds of support they need, and the strategies for supported decision-making used in practice. Analysis of these interviews suggests that a range of supported decision-making techniques have been developed in practice and are effective in supporting everyday preferences and some life choices. Paradoxically, it appears that as decisions become more complex, the support available to disabled people reduces. Specifically, much less support is available for more difficult decisions around finances, healthcare and legal matters. We argue that the reasons for this are due to a web of regulatory, social and policy issues. We conclude that implementing the right to enjoy legal capacity through supported decision-making will require a combination of regulatory reform, social change and policy amendment.
Keywords: legal capacity; mental capacity; supported decision-making; UN Convention on the Rights of Persons with Disabilities; care; human rights.
Access: Fully Open Access View Full-Text.
Harding, R. (forthcoming, 2021) ‘Safeguarding Freedom? Liberty Protection Safeguards, Social Justice and the Rule of Law’ Current Legal Problems
Abstract: The issue of when and how disabled people can be lawfully deprived of their liberty is a major contemporary challenge for mental capacity law. People who lack capacity to consent to treatment that deprives them of their liberty must have access to safeguards to protect their rights under Article 5 ECHR. The current Deprivation of Liberty Safeguards are widely considered to be unfit for purpose, and a replacement scheme, the ‘Liberty Protection Safeguards’ (LPS) were proposed by the Law Commission of England and Wales in 2017. These safeguards were legislated for in 2018/19 in the Mental Capacity (Amendment) Act and are expected to be implemented in 2022. At the time the reforms were being debated in Parliament, multiple stakeholders expressed serious reservations about the proposals, some going so far as to claim that they are not ‘good law’. In this paper, I evaluate to what extent the LPS is (or has the potential to be) ‘good law’, drawing on two contrasting conceptual frameworks to guide that analysis: Bingham’s (2007) sub-principles of the rule of law; and the capabilities approach developed by Sen and Nussbaum (among others). I argue that despite the technical problems with the legislation that caused such concern during its passage through parliament, if the implementation process is grounded in a strong social justice conceptual frame, the LPS has the potential to be a positive legal reform.
Keywords: Capabilities Approach; Deprivation of Liberty; Disability; Liberty Protection Safeguards; Mental Capacity; Rule of Law; Social Justice
Access: to be published fully open access online. You can watch a video recording of the lecture this paper is based on.
Conference presentations and invited talks:
Harding, R. & Peel, E. (2020) ‘Sociolegal and Practice Implications of Caring for LGBTQ People with Dementia’ Alzheimer’s Association International Conference, Online Virtual Conference, July 27-31 2020.
Harding, R. (2020) ‘Intimacy and Intellectual Disability: Empirical reflections on capacity, sexuality and family law’ Guest Lecture, Keele University School of Law 12 February 2020.
Harding, R. (2019) ‘Creating and implementing safeguards to protect disabled people’s liberty’ Westminster Legal Policy Forum, Deprivation of Liberty conference, 12 November 2019.
Harding, R. (2019) Keynote address, ‘Supporting Decisions at the End of Life’ Meaningful relations – patient and family carer encountering death at home –MeRela Conference, Helsinki, Finland, 28-30 August 2019
Harding, R. (2019) ‘Supporting Decisions from the everyday to the exceptional’ Supporting Legal Capacity in Socio-Legal Context International Institute for the Sociology of Law, Onati, Spain 18-19 July 2019.
Harding, R. (2019) ‘Supported Will-Making from Theory to Practice? Striking the balance between enabling legal capacity and preventing undue influence’ IAGG-ER Conference, Gothenburg, Sweden 23-25 May 2019.
Harding, R. (2019) ‘Making the Case for a Nominated Supporter Scheme in English Law’ SLSA Annual Conference, Leeds 3-5 April 2019.
Harding, R. (2018) ‘Supporting Everyday Decisions: Navigating the Chronotopes of Disability Social Justice’ Law and Social Justice Postgraduate Conference, University of Liverpool 2 July 2018 (invited).
Harding, R. (2018) “He got down on one knee”: Intellectual Disability, Intimacy and Family Law Disability, Gender and Family Law Workshop University of Oxford 25 June 2018 (invited).
Harding, R. (2018) ‘Safeguarding Against Harm? Health and social care, disability, and the challenge of social reproduction’ Law Harm and Social Reproduction Workshop University of Warwick, 20-21 June 2018 (invited).
Harding, R. (2018) ‘A Retreat from Mental Capacity? Everyday decision-making by people with intellectual disabilities’ Law & Society Association Annual Conference Toronto, Canada, 7-10 June 2018.
Harding, R. (2018) ‘Everyday Decisions: Supporting legal capacity through care, support and empowerment’ Plenary Address, Is it worth it? Capitalising Investment to Value Life after Brain Injury conference, Central Hall Westminster, 10 May 2018 (invited).
Harding, R. (2018) ‘Everyday Decisions: Supporting Legal Capacity’ National Mental Capacity Day of Action 5 March 2018, British Medical Association, London (invited).
Harding, R. (2017) ‘Time to abandon ‘mental capacity’? Everyday decision-making by people with intellectual disabilities’ Centre for Socio-Legal Studies Seminar, University of Oxford, 16 October 2017 (invited).