Alex Ruck Keene KC (Hon) is the editor of the Court of Protection Law Reports.
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By chance, I did a few of the cases under the old inherent jurisdiction of the High Court concerning capacity and best interests before the Mental Capacity Act 2005 came into force. I realised then, and then had this strongly reinforced as I started to do cases before the new Court of Protection, how fascinating and difficult this area of law is. As I tell my students at King’s College London (where I am a Visiting Professor), it is 1% law and 99% ethics. In other words, the law in this area is very good at outlining what it means to lack capacity to make a decision, and what the component parts of making a best interests decision might be, but does not – and arguably cannot – say anything about whether you should find someone to lack capacity, or what the right answer is as regards their best interests.
I set this up ten years ago now as part of what I understand that I am meant to call the development of a portfolio career. That sounds rather grand, but in reality what it means that it followed my realisation that doing cases in court about matters relating to mental capacity was only part of what I wanted to do, and I wanted to spend time thinking about the law, teaching it, and working on reform of the law itself. The website gives me space to do much of this, along with increasing public awareness and knowledge of mental capacity matters. This is something that I think is vital given that at least a third of the people reading this will be subject to the Mental Capacity Act 2005 at some point in their life when they develop dementia or another condition which impairs their ability to make decisions.
It is as if the courts knew that we were starting to publish the series, because the cases in the first issue cover the whole range of the court’s work, from difficult health and welfare matters (the PN case, about capacity in a range of domains relating to sex), to property and affairs (TA v Public Guardian), costs (Re VA (Medical Treatment)) and its little known, but very important, cross-border jurisdiction (Health Service Executive of Ireland v A Hospital Provider).
Given the portfolio nature of my career, it is probably juggling the demands of several different types of work, from long-term law reform projects, such as my current role at the Law Commission, to teaching and marking at King’s College London, and then the sometimes urgent and unpredictable demands of litigation.
