Gurbai, Sandor and Fitton, Emily and Martin, Wayne (2020) Insight under Scrutiny in the Court of Protection: A Case Law Survey. Frontiers in Psychiatry, 11. 560329-. DOI https://doi.org/10.3389/fpsyt.2020.560329
Gurbai, Sandor and Fitton, Emily and Martin, Wayne (2020) Insight under Scrutiny in the Court of Protection: A Case Law Survey. Frontiers in Psychiatry, 11. 560329-. DOI https://doi.org/10.3389/fpsyt.2020.560329
Gurbai, Sandor and Fitton, Emily and Martin, Wayne (2020) Insight under Scrutiny in the Court of Protection: A Case Law Survey. Frontiers in Psychiatry, 11. 560329-. DOI https://doi.org/10.3389/fpsyt.2020.560329
Abstract
The concept of patient insight, of a patient’s self-awareness of illness or impairment (and related issues), plays a significant role in clinical discourse and clinical practice. But what role does it play in the legal process, particularly when a patient’s decision-making capacity (or ‘mental capacity’) is in question? We report on a survey of 412 published judgments from the Court of Protection of England and Wales, published between 2007 and 2018. We found that the notion of patient insight played a role in 53 cases (13% of the total). We use a variety of techniques to provide a systematic profile of these ‘insight cases’. We provide a demographic profile of the patients whose insight is discussed (focusing on gender, age and diagnosis) and a professional profile of the expert witnesses who raise the issue of insight. We then deploy the technique of ‘logical geography’ to map the meaning of the term insight and the inferential patterns in which reports of patient insight are embedded. We point out that the published insight cases never explicitly define ‘insight,’ and that they include no reference to structured instruments or scales for the assessment of insight. We show that the concept of insight, as used in the Court of Protection, is not synonymous with the concept of agreement with a diagnosis of illness; this is at most one of a range of meanings that the concept carries. We show that, despite the fact that the presence or absence of insight is not itself a legal criterion for mental capacity, insightlessness does play a role, and sometimes a decisive role, in shaping findings as regards the presence or absence of mental capacity. Finally, we assess the extent to which expert testimony in the insight cases conforms to the insight-related recommendation of the recent NICE Guideline on Decision-Making and Mental Capacity.
Item Type: | Article |
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Uncontrolled Keywords: | insight, mental capacity, capacity assessment, Court of Protection (England and Wales), conceptual geography |
Divisions: | Faculty of Arts and Humanities Faculty of Arts and Humanities > Philosophical, Historical and Interdisciplinary Studies, School of |
SWORD Depositor: | Unnamed user with email elements@essex.ac.uk |
Depositing User: | Unnamed user with email elements@essex.ac.uk |
Date Deposited: | 11 Sep 2020 15:10 |
Last Modified: | 16 May 2024 20:31 |
URI: | http://repository.essex.ac.uk/id/eprint/28483 |
Available files
Filename: Gurbai Fitton Martin 2020 Case Law Survey.pdf
Licence: Creative Commons: Attribution 3.0