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Beyond the Balancing Scales: The Importance of Prejudice and Dialogue in A Local Authority v E and Others

Kong, Camillia (2014) Beyond the Balancing Scales: The Importance of Prejudice and Dialogue in A Local Authority v E and Others. Child and Family Law Quarterly, 26 (2). pp. 216-236. ISSN 1358-8184.

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Abstract

In May 2012, in A Local Authority v E and Others,' a best interests ruling was made under the Mental Capacity Act 2005 to coercively treat a severely anorexic woman, E, against her will. The best interests decision was purportedly reached through a process of judicialbalancing; however there is something deeply unsatisfactory about this account. This commentary delves beyond the expressed balancing method and applies the tools of philosophical hermeneutics to both understand and challenge the best interests ruling in A Local Authority v E and Others. First, the hermeneutic concept of 'prejudice' makes explicit the implicit judgments determining the best interests decision in this case. Secondly the commentary challenges the best interests decision in two ways: (1) the hermeneutic emphasis on dialogical understanding provides grounds for questioning the judge's failure to integrate the views of E and her wider decision community (including family and long-term clinicians); (2) the ruling could be deemed invalid due to the implicit application of a status-based rather than statutory functional test to assess E's current and retrospective capacity.

Item Type: Article
Uncontrolled keywords: Adjudication, anorexia, best interests, hermeneutics
Subjects: B Philosophy. Psychology. Religion
B Philosophy. Psychology. Religion > B Philosophy (General)
K Law
K Law > KD England and Wales
Divisions: Faculties > Humanities > School of European Culture and Languages > Philosophy
Depositing User: Camillia Kong
Date Deposited: 10 Nov 2016 12:49 UTC
Last Modified: 29 May 2019 18:10 UTC
Resource URI: https://kar.kent.ac.uk/id/eprint/58515 (The current URI for this page, for reference purposes)
Kong, Camillia: https://orcid.org/0000-0002-0551-0689
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