The Australian Centre for Health Law Research annual oration is delivered by leading international experts in health law.
On Thursday 21 November 2024, ACHLR’s 12th Annual Oration was delivered by Professor John Coggon. His presentation slides are available online, and you can listen to his presentation below:
Abstract
How do you stop hard cases from making bad law? One way is to strip their determination of any distinctly legal reasoning, and deny that they make law at all. This paper suggests that that is the approach found in England and Wales’ Mental Capacity Act 2005 (MCA). The MCA provides the framework for establishing legally that an adult lacks capacity to make personal decisions on their own behalf. And in the event of a finding of incapacity, it provides the best interests standard as the mechanism for resolving how a decision should be made. With a focus on best interests determinations within mental capacity adjudication, the following argument challenges the sense (or otherwise) in conceiving of such adjudication as a legal exercise. I argue that MCA cases neither involve the courts in a law-applying nor even a law-making role. Rather, they represent the issuing of a decision that is eminently non-legal in nature, and more reflective of the exercise of an executive or administrative function. This raises questions about the quality and defensibility of mental capacity jurisprudence itself, but also about the meaning of law and the role of the judicial branch.
Professor John Coggon
John Coggon is Professor of Law in the Centre for Health, Law, and Society at the University of Bristol Law School in the United Kingdom. Beyond the University, he is an Honorary Member of the UK Faculty of Public Health (FPH), sits on the ethics committees of the FPH and the British Medical Journal, and is a member of the Nuffield Council on Bioethics. John’s research focuses especially on philosophical and socio-legal questions in public and global health ethics and law and mental capacity law, examined in particular through methods of moral and political analysis. His academic works include the books What Makes Health Public? (Cambridge University Press, 2012) and, with Keith Syrett and A.M. Viens, Public Health Law: Ethics, Governance, and Regulation (Routledge, 2017). With A.M. Viens, John was commissioned by the UK Department of Health to write Public Health Ethics in Practice (2017), and he has contributed through FPH in the production of academic and public and practitioner-focused resources on public health ethics and law. He has been on many funded research projects, including (until summer 2022) the UK Research and Innovation (UKRI)-funded UK Pandemic Ethics Accelerator and the UK Prevention Research Partnership-funded Tackling the Root Causes Upstream of Unhealthy Urban Development. He was also a co-I on the UKRI-funded project Judging Values and Participation in Mental Capacity Law.