The mental capacity and mental health law and policy landscape – a stocktake

In the latest ‘in conversation with,’ I talk to Dr Jonathan Brown about the very different approach to the decision-making authority granted children in Scotland, prompted by his article arising out of this case decided in Scotland just before Christmas 2025. The discussion hopefully serves both to alert people to the fact that they should not assume that things are the same either side of the border, to start to think about why this might be the case, and what this might suggest in terms of law reform. [Note: Jonathan explains things with huge clarity, but, as we get into, this is a remarkably complicated area, so you may want to have a wet towel ready to wrap around your head]. For the original video, see here. If you want an overview of the position in England and Wales, this chapter by Dr Camilla Parker KC (Hon) (from the LAG Disabled Children: A Legal Handbook (available for free thanks to the Council for Disabled Children) is extremely helpful; if you want to know more about the position of 16/17 year olds, I have done a video, available here.

In this ‘in conversation’ with Dr Beverley Samways, we talk about the scoping review she has led on to review NHS restraint policies in relation to people with learning disabilities, in the context of Seni’s Law (the Mental Health Units (Use of Force) Act 2018), explaining the motivation, the findings and the recommendations, to be found on the resources page for the project here. The original video can be found here.

In this ‘in conversation with,’ I talk to Professor Tony David about his new paper, Insight, the law and psychiatry: Going round in circles or playing nice?. We talk about what ‘insight’ means clinically, and how law and medicine can have a more productive discussion about applying the concept in a way which better secures the interests of those whose capacity to make relevant decisions may be under examination. For the original video, see here.

In this ‘in conversation’ with Dr Joe Gough, we discuss some of the fruits of his British Academy Postdoctoral Fellowship at the University of Oxford looking at legal and medical assessments of decision-making capacity, how they misfire for the neurodivergent and cognitively disabled, and how this should inform philosophical accounts of agency and autonomy. In this conversation, we look in particular at the assessment of capacity in the context of anorexia, the challenges that anorexia poses to the very concept of capacity, and how to think about justifications for intervention without falling into ‘outcome’ based assessments of capacity. The papers we refer to in the discussion are. Affect, Autonomy, Authenticity, and the Assessment of Decision‐Making Capacity: The Problem of Tyrannical Coherence Decisional capacity, Cartesianism, the CRPD and obfuscating paternalism: substituting ‘supported’ for ‘substitute’ Race and mental capacity: no panacea Best interest and family compromise Joe also has a book forthcoming from Oxford University Press, After Mind: Myths of Mind and Mechanism in Philosophy, Science, Medicine, and Law, developing these arguments in a broader context. For the original video, see here.

In this ‘in conversation with,’ I talk to Nick Robinson, Professor Judy Laing, and Dr Jeremy Dixon about the website that they have recently been involved in setting up providing resources for nearest relatives under the Mental Health Act 1983. Nick gives the perspective of a nearest relative, Jeremy explains the research underpinning the project, Judy explains the resources available, and all three reflect on the difference between the law and legal literacy / legal confidence, and also give some thoughts about the move to ‘nominated persons’ to be brought in by the Mental Health Act 2025. For the original video, see here.