Department For Constitutional Affairs Research Articles

Immanuel Kant and the Task of Understanding Another’s Lived-Experience

Immanuel Kant and the Task of Understanding Another’s Lived-Experience Simon Wharne*, PhD Professor katie harster has considered the phenomenon of psychological trauma, bringing philosophical understandings into play. She provides an informed account of observed “symptoms,” and associated treatments. I comment as a counseling psychologist, although I do not specialize in the evidence-based treatments that she describes. Usually, in my work with clients, we are trying to make sense of what has happened, with a concern for what might happen in the future. I am grateful therefore to colleagues who have the expertise that I lack. I recall a discussion with one of these colleagues, who suggested that, “If a house is on fire, your priority should be to put out the flames and you can worry about how it caught on fire sometime later.” A good point I thought, and this is supported by Harster’s account. I am stretching the analogy, but a traumatized person could be like that annoying faulty smoke alarm. It keeps going off even though there is no actual fire. When a person’s anxiety appears to be unwarranted, it is taken to be a symptom of mental illness. My colleagues measure anxiety, using standard rating scales, and interventions are considered evidence-based when they reduce scores on those measures. However, we know that removing the batteries from an annoying smoke alarm is not an adequate response. I observe below that anxiety can be positive and protective. I also observe that trauma can be so far off the scale of what we usually experience, that it will be difficult to make sense of what has happened, or to adjust to it. Harster describes how a Kantian framework supports pragmatic and stoic responses to trauma. This framework underpins certain areas of psychological theory and practice, in which it is suggested that we cannot trust our emotions, and we must turn instead to reason. I support this to a degree, but I am concerned that reason and symptom reduction will not always be enough. Harster describes how traumatized people can struggle with self-blame. How they lack a sense of self-worth and how they can lapse into extreme risk taking. Within that Kantian framework, it is assumed that there is something wrong with them. However, if we take time with them to explore what happened, [End Page 161] we might come to understand why they respond in that manner (see the PTMF: British Psychological Society, 2021) In my understanding of trauma, I turn to Søren Kierkegaard, who observed the value of anxiety. Anxiety can motivate the development of a moral and purposeful sense of self (Kierkegaard, 1981/1844). Kierkegaard and Immanuel Kant share a lot in the way that they approach morality and freedom (Assiter, 2013). In other ways they are radically opposed. Kant builds on Aristotelian logic in syllogisms and the formal concepts that he calls categories. He is trying to observe the human condition from a remote vantage point somewhere outside of that state of being. Kierkegaard approaches the human condition, instead, as it is lived. Harster supports Kant’s claim that, before we can have experiences and make moral judgments, we need to be possessed of certain capabilities of mind. We need a capacity for synthesizing information; when that is, we “apprehend in intuition,” and we “reproduce in imagination,” and we are thereby “recognizing concepts.” This framing of the human state as an information-processing device is supported in cognitive psychology and related treatments. It is also expressed in the UK, in the Mental Capacity Act 2005 (Department for Constitutional Affairs, 2007). The act permits statutory authorities to impose decisions on those who are assessed as mentally incapacitated. The human condition is seen again from a supposed authoritative vantage point. As if people were just objects in the world, alongside other objects, with given properties that can be manipulated. Within our statutory administrative systems, we assess mental capacity, and thereby facilitate expedient decisions. We squeeze the person into our predetermined categories, ignoring the idiosyncratic nature of their being. Our knowledge framework will hold them in a circular argument; they are mentally ill because they are irrational, and they...

Use of the Chemical Imbalance Hypothesis by Mental Health Professionals Acting as Expert Witnesses in Court

Background: The hypothesis that mental distress is caused by chemical imbalances in the brain is widespread in public and professional discourse, and has fuelled research into and prescription of antidepressant medication. Nevertheless, this hypothesis has very little supporting evidence, and has been branded as oversimplistic and reductionist, with some even claiming it is nothing but a myth. The continued discussion of this controversial explanatory model by various professions raises the question of how the chemical imbalance or monoamine hypothesis is used by expert witnesses in legal proceedings. Aims: The study examined how expert witnesses have used the chemical imbalance hypothesis as explanations in Court cases involving mental health. Method: The study was a qualitative investigation of secondary data. Two databases of Court transcripts were systematically searched, resulting in 19 transcripts where expert witnesses used/referred to the hypothesis. These transcripts were analysed using a hybrid method of thematic analysis and discourse analysis. Results: The chemical imbalance model was invoked in Court proceedings as an unquestioned scientific “fact” rather than a hypothesis with conflicting evidence, and to support divergent, even contradictory, conclusions. Conclusions: In the context of expert evidence to Courts, this appeared to serve the function of reinforcing the scientific basis of psychology or psychiatry – supporting and rendering unquestionable the subjective opinions of the expert (“trust me, I’m a scientist”). Funding: None to declare. Declaration of Interest: Author A reports no conflicts of interest. Author B is employed by the University of Liverpool and is a clinical psychologist in independent practice. Over the course of his career, Author B has received research grants from the National Institute of Health Research, the Medical Research Council, the Economic and Social Research Council, the Wellcome Trust, the Youth Justice Board for England, various NHS Trusts, the Department of Health, the European Commission, the British Psychological Society, and the Reader, and personal fees from the Department for Constitutional Affairs, legal counsel, the BBC, Smoking Gun Media, GLG Group, True North Productions, and Compass Pathways Ltd. He has also received royalties on published work in the field of mental health from Palgrave Macmillan, and Little, Brown Book Company, and travel and hospitality from a variety of organisations in relation to speaking and other professional activity. Author B has a remunerative secondment contract through his employers to act as a Clinical Advisor for Public Health England. Author B sits on the NICE (National Institute for Health and Care Excellence) Guidelines panel for Adult Depression 2015-2021, is a Member of the Council for Evidence Based Psychiatry, a director of Kyrie Therapeutic Farm Ltd, and a former President of the British Psychological Society. Author B is a member of the British Beekeepers’ Association, and a member of the Giordano Bruno Foundation (Giordano- Bruno-Stiftung). Author B owns shares in Alphabet (the parent company of Google), Twitter, and the Kindling Trust, and is Director and owner of Kinderman Consulting Ltd.

Best interests of adults who lack capacity part 2: key considerations.

Last month's article discussed the key concepts underpinning the notion of best interests. In this article the author discusses the requirements for determining the best interests of an adult who lacks capacity under the provisions of the Mental Capacity Act 2005 and its code of practice (Department for Constitutional Affairs 2007).

Foreword

<p align="LEFT">Nobody who works in or writes about this area of the law can fail to acknowledge that we are experiencing a period of explosive change. Since the last issue of the Journal we have seen the publication of two new draft Bills, which together promise to change the shape of mental health care and services in the future. On 18th June 2004, the Mental Capacity Bill was published, reflecting many of the recommendations made by the Joint Parliamentary Scrutiny Committee appointed last summer to consider the Mental Incapacity Bill 2003. More recently, on the 8th September, the new Mental Health Bill 2004 was finally published, and will also be subjected to pre-legislative scrutiny by an expert parliamentary committee which is due to report its findings by March 2005. Finally, this very week, the draft Code of Practice for the Mental Capacity Bill 2004 was announced by the Department of Constitutional Affairs.</p>

Fixing Lawyers' Fees Ex Ante: A Case Study in Policy and Empirical Legal Studies

The relationship between legal fees and damages is fundamental to the way litigation is funded in most countries. In jurisdictions where fee shifting is the norm, the means by which courts regulate recoverable costs (i.e., the plaintiff's fees), and the extent to which they are proportional to damages, is of central importance. This article explores a recent case study from the United Kingdom involving the introduction of procedural rules designed to build an explicit and transparent degree of proportionality into the determination of legal costs. In October 2003, the Department of Constitutional Affairs in England and Wales announced the introduction of the “Fixed Recoverable Costs Scheme for Low Value Road Traffic Accident Claims.” This established a set of fixed costs that successful lawyers could recover from losing defendants in such cases. The Fixed Recoverable Costs Scheme was based closely on research undertaken by the authors for the Civil Justice Council and the current article describes the process that brought this about. In so doing, it provides an explicit example of empirical legal studies having a direct impact on policy. We were also asked to provide some basic evaluation of the scheme two years later and the article also shows how the scheme was operating, including some of the behavioral changes it apparently induced. We argue that some of these were predictable at the time the scheme was being designed and that the total experience allows us to consider ways the interaction between empirical legal studies and policy can be improved in the future.

Evaluation of a structured assessment framework to enable adherence to the requirements of Mental Capacity Act 2005

Accessible summary The Mental Capacity Act is a new law that started in 2007. It says that everyone must be helped as much as possible to make his or her own decisions. But people with learning disabilities may find it difficult to make a particular decision and another person may have to make it for them. The new law provides important safeguards to the rights of people who cannot make decisions for themselves and also provides guidance for people working with them to deal with such situations. It is very important to follow the requirements of the Mental Capacity Act, and it is a legal requirement. We looked at how we dealt with situations when our patients could not make decisions for themselves and also looked at whether a checklist we made helped us to make decisions according to the new law. The results showed that people were not always following the new rules of the Mental Capacity Act before we gave them our new checklist. Using our checklist helped people making decisions for people with learning disabilities in a way which fitted in better with the new Mental Capacity Act. SummaryThe Mental Capacity Act 2005 for England and Wales received Royal assent in April 2005 and came into force in 2007 (Department of Constitutional Affairs, 2007). The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. The adherence to it is a statutory requirement, not just guidance. An audit looked at the quality, thoroughness and completeness of making decisions for people with learning disabilities who lacked capacity in making specific decisions for themselves. We re‐audited the same using a checklist made with the requirements of the Mental Capacity Act in mind. The audit showed that the use of the checklist enabled a structured discussion to take place regarding the decision‐making process and ensured complete documentation. It facilitated full adherence to the Mental Capacity Act and established better standards of clinical practice.

A No-Win Situation for Public Officials with Faith Convictions

This article considers two recent high-profile employment cases to investigate the peculiar dilemma faced by certain public officials who are called upon to implement public policy in situations where their consciences are made uneasy due to their faith-based convictions. Such officials face, among other options, the dilemma of choosing between an appeal to rational objections, based on ‘public reasons’ that are non-religious in character, or citing their own faith-based conscientious objections. In McClintock v Department of Constitutional Affairs, by initially basing his objections on a form of public reason, McClintock arguably muddied the waters for his subsequent unsuccessful claim of religious discrimination. In Ladele v Islington Borough Council, however, the appeal to conscience alone also failed as religious convictions were ‘trumped’ by the superior claims of particular policy objectives. This article thus concludes that the ‘religious’ public official may, ultimately, have nowhere to turn except either to silence conscience and acquiesce or to exercise that ‘minimum’ employment right under ECHR case law – the right to resign.

CORRESPONDENCE

The Mental Capacity Act 2005 (Department for Constitutional Affairs, 2007) provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. It states that it is good practice for professionals to carry out a proper assessment of a person's capacity to make particular decisions and to record the findings in the relevant professional records. A person is unable to make a decision for him-/herself if he/she is unable to understand, retain, use or weigh that information and to communicate his/her decision.

Evaluation of the Birmingham Court-Based Civil (Non-Family) Mediation Scheme

The Birmingham Civil Justice Centre civil (non-family) court-based mediation scheme was launched on 7th December 2001. At the time of the research census in October 2004, 331 cases had been stayed for mediation within the scheme (approximately 11% of the cases allocated in the Birmingham CJC during that period). Mediation is available at the court in all types of claim where the sum in dispute exceeds 5,000 and in all housing disrepair cases regardless of the amount claimed. The court provides accommodation for mediations between the hours of 4.30pm and 7.30pm and arranges the introduction of a trained independent mediator. Fees vary according to the sum in dispute and the entirety of the fee is paid to the mediator or mediation organization. The study was designed in response to an invitation from the Department for Constitutional Affairs, seeking to establish the effectiveness of a number of court-based mediation schemes in terms of resources, quality and user satisfaction.

The idea of proportionality in dispute resolution

This article compares the ways in which the idea of proportionate dispute resolution has been dealt with in three recent reports: Lord Woolf's Reviews of the Civil Justice System (1995 and 1996), the Department of Constitutional Affairs' White Paper on ‘Complaints, Redress and Tribunals’ (2004) and the Law Commission's Issues Paper on ‘Proportionate Dispute Resolution in Housing’ (2006). The first of these reports adopts a ‘top‐down’ approach in which procedural judges allocate cases to one of the three streams in terms of the size of the claim, its complexity and its importance while the second report takes a ‘bottom‐up’ approach in which complainants decide what sort of remedy they want and, thus, what set of procedures they should use. The third report suggests that there is a ‘third way’ and the article examines the principle of ‘triage plus’ and the ways in which this principle could promote informed choice. It analyses the Law Commission's proposals for implementing ‘triage plus’ and concludes by questioning whether policy makers are ready to make a reality out of their enthusiastic embrace of the principle.

Do Citizens Know How to Deal with Legal Issues? Some Empirical Insights

AbstractOver recent years there has been increasing policy concern in the UK about whether citizens are equipped with sufficient legal ‘know-how’. In January 2006, the Department for Constitutional Affairs, now Ministry of Justice, announced a Public Legal Education and Support Task Force to develop and promote the case for a national strategy. This comes after UK government strategies have recently been developed for both consumer education and financial capability. Drawing on empirical data, this article explores whether there is indeed a lack of awareness and confidence among the population of England and Wales in regard to legal issues. The results from the English and Welsh Civil and Social Justice Survey, a large-scale face-to-face survey representative of the population, illustrate the case for targeted as well as general public legal education initiatives.

Commentary on Paley J (2008) Spirituality and secularization: nursing and the sociology of religion. Journal of Clinical Nursing17, 175–186

included study Cortazzi et al. (2001) reported on the use of both incidental, anecdotal and formal peer teaching and learning strategies, as reported in the outcomes ‘Narratives mediate learning by re-telling experience, students learn by reflection’ (Secomb 2008). In health science education literature many learning outcomes are self reported, peer evaluated, client reported or clinician evaluated, therefore level of evidence is considered but not central to the investigation (Secomb 2008). The inclusion of this type of information can highlight significant factors and further research responsibilities and possibilities (Secomb 2008), but the research design needs to clear (Altman 2002), and the meaning contextualised within existing literature, and evaluation and inclusion strategies outlined. As with this review, not all the outcomes discussed in the main text as relevant to the research question made the final reporting, in Table 2 ‘The significant findings for clinical practice from this systematic review of literature’ (Secomb 2008). When it became evident that statistical meta-analysis was unachievable, a meta-synthesis which provided consistency and comparability between studies their designs and results was used. Jacinta Secomb PhD candidate University of South Australia E-mail: secomb@chariot.net.au

McClintock v Department for Constitutional Affairs

McClintock v Department for Constitutional Affairs

Researching the Judiciary: Exploring the Invisible in Judicial Decision Making

Journal of Law and SocietyVolume 35, Issue s1 p. 76-90 Researching the Judiciary: Exploring the Invisible in Judicial Decision Making Caroline Hunter, Caroline Hunter Currently senior lecturer in the School of Law, University of Manchester, and recently appointed Professor of Law at York University. [email protected]Search for more papers by this authorJudy Nixon, Judy Nixon Principal Lecturer at Sheffield Hallam University, has extensive experience of teaching, researching, and writing in the fields of housing policy and socio-legal issues, specializing in work around antisocial behaviour. [email protected]Search for more papers by this authorSarah Blandy, Sarah Blandy Senior lecturer in property law at the School of Law, University of Leeds. [email protected]Search for more papers by this author Caroline Hunter, Caroline Hunter Currently senior lecturer in the School of Law, University of Manchester, and recently appointed Professor of Law at York University. [email protected]Search for more papers by this authorJudy Nixon, Judy Nixon Principal Lecturer at Sheffield Hallam University, has extensive experience of teaching, researching, and writing in the fields of housing policy and socio-legal issues, specializing in work around antisocial behaviour. [email protected]Search for more papers by this authorSarah Blandy, Sarah Blandy Senior lecturer in property law at the School of Law, University of Leeds. [email protected]Search for more papers by this author First published: 08 May 2008 https://doi.org/10.1111/j.1467-6478.2008.00426.xCitations: 10 This article is based on work originally commissioned by the Department of Constitutional Affairs (DCA). The views presented here do not represent those of the DCA. We would like to thank the other members of the team, D. Cowan, E. Hitchings, C. Pantazis, and S. Parr, who were instrumental in the development of the methods described here and were an essential part of the data-collection process and without whom this paper would not have been possible. Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Citing Literature Volume35, Issues1Special Issue: Law's Reality: Case Studies in Empirical Research on LawJune 2008Pages 76-90 RelatedInformation

Are psychiatrists affecting the legal process by answering legal questions?

Psychiatrists are often asked to answer legal questions. The extent to which they answer strictly legal rather than medical matters is not known. To investigate how strongly psychiatrists in England and Wales express opinions on one legal question - that of diminished responsibility in respect of a murder charge, and how this is related to outcome in court. METHOD Our data were extracted from psychiatric reports and case files supplied by the then Department of Constitutional Affairs (now the Ministry of Justice) on cases heard in the Crown Courts between 1 January 1997 and 31 December 2001 in which the defence of diminished responsibility had been raised. The cases had been selected by the Law Commission in their earlier review of partial defences to murder. We devised a reliable system of rating the presence/absence and strength of expression of a legal opinion in the medical reports. We tested the data for relationship between nature and strength of opinion and progression to trial and verdict. RESULTS Psychiatric reports were available on 143 of 156 cases in which diminished responsibility was considered. They yielded 338 opinions on at least one aspect of diminished responsibility. In 110 (93%) of the 118 cases in which there was a diminished verdict, this was made without trial and, therefore, without reference to a jury. In only eight (27%) out of the 30 cases that went to trial, was a diminished responsibility verdict made. Half of the reports (169) gave a clear opinion on diminished responsibility, a third (121) invited the court to draw a particular conclusion and only 11% (36) provided relevant evidence without answering the legal questions. When there was an opinion or an invitation to make a finding on the legal question, a trial was less likely. A trial was also less likely if reports agreed on what the verdict should be. CONCLUSIONS Psychiatrists frequently answer the legal question of diminished responsibility. The judiciary and medical experts should join in research to examine the consequences of different styles or approaches in presentation of essentially similar evidence in court.

The Mental Capacity Act 2005 and decision-making: Code of Practice

Continuing the series of articles on the Mental Capacity Act 2005, which for the most part came into force in October 2007, this article considers the significance of the Mental Capacity Act 2005 Code of Practice (Department of Constitutional Affairs, 2007), and its implications for nursing staff. The Secretary of State is required to provide a code or codes of practice on the Act covering specified areas. A draft code was prepared and was revised that came into force on 1 April 2007. The article sets out who is bound to follow the Code of Practice and the consequences if it is ignored. Informal (unpaid) carers are not required by the Act to follow the Code but it is hoped that in practice they will do so. The Ministry of Justice (replacing the Department of Constitutional Affairs) is responsible for monitoring the Code and will revise it from time to time.

Epileptic Automatisms in the Criminal Courts: 13 Cases Tried in England and Wales between 1975 and 2001

To explore the relationship of epilepsy and criminal behavior. Case series based on all criminal cases found "not guilty by reason of insanity" (NGRI) because of epilepsy in England and Wales between 1975 and 2001. Data were extracted from medico-legal reports held by the Mental Health Unit at the Home Office and the Department for Constitutional Affairs in London, UK. Thirteen cases were identified, accounting for 7.3% of all verdicts of NGRI. Charges included murder (1), attempted murder (1) assault (7), arson (2), abduction/kidnapping (3), and burglary (1). Of the defendants, 92.3% were male, 76.9% had neuropsychological impairments, 84.6%% had psychiatric comorbidity, 92.3% were unemployed at the time of the offence, and 69.2% had been convicted of criminal offences previously. Eight of 10 defendants treated with antiepileptic drugs were complying poorly with medication. A total of 61.5% offenses were committed in a state of alcohol intoxication. Psychotic symptoms may have been present when the offense was committed in 52.8% of cases. Over two-thirds of offenses probably occurred during the postictal period. This case series suggests that it is exceptional for epileptic seizures to cause criminal acts or omissions. The relatively low standard of proof required means that some of cases found NGRI on account of epilepsy were not actually related to seizures. There were no definite examples of ictal criminal behavior. Most offenses related to seizures are likely to have occurred in the postictal phase.

Judicial diversity, the woman judge and fairy tale endings

The story of the woman judge as one of exclusion and isolation plagued with allegations of bias is well documented. Interestingly, despite significant differences in time and place, a common theme unites these tales: the woman judge is a dangerous outsider, a threat to the aesthetic norm. The judicial climate, at least in most of the common law world, is somewhat chilly: reactions to her presence on the bench vary from the largely indifferent to the downright hostile. Why is this? After all, most people, perhaps acknowledging the political and democratic gains underlying calls for a more representative judiciary, would wish to encourage – or at least not discourage – judicial diversity.Taking the stories of the woman judge as its starting point, this paper contends that underlying these tales is an image of the judge that is as much intuitive as it is reasoned; that our understanding of the judge and judging is as much derived from the imagination as from what is conventionally considered as rational thought. Thus, the paper deploys the narrative strategies of fairy tales in an attempt to disrupt the imaginative hold of familiar yet particular images that infuse and distort current discourses on adjudication. It suggests that despite the Department for Constitutional Affairs’ ongoing quest to increase diversity within the judiciary, current initiatives do not confront fully these instinctive images. As a result, their narrative of inclusiveness and difference fails. In response, the paper appeals to the imagination as a route toward engendering new conceptions on the judge and judging, the possibility of truly diverse judiciaries and, perhaps, a fairy tale ending to the woman judge’s story.

Tribunal Reform: Proportionate Dispute Resolution and the Pursuit of Administrative Justice

The article considers some unresolved policy choices associated with the implementation of ‘proportionate dispute resolution’, one of the most interesting ideas in the Department of Constitutional Affairs' White Paper Transforming Public Services: Complaints, Redress and Tribunals, published in 2004. It attempts to put the White Paper into context by tracing the Government's concern with tribunal reform over the last 50 years. It briefly compares the Franks Report, published in 1957, with the Leggatt Report, published in 2001, and outlines the steps that led to the publication, three years later, of the White Paper. It then analyses the similarities and differences in the approaches to reform taken by the Leggatt Report and the White Paper. The article focuses on the principle of ‘proportionate dispute resolution’, the idea that the ways in which cases are dealt with should reflect the nature of the dispute and what the person in dispute with a public body wishes to achieve. Seven policy options are considered, all of which hold out the prospect of enhancing administrative justice, either by reducing the incidence of disputes or by handling them more effectively. They are then assessed in terms of how well they are likely to do so.

The Children (Northern Ireland) Order 1995 10 Years On: The Resource Demands of Legislative Change

In the paper “A Fairer Deal For Legal Aid” (2005), the Department of Constitutional Affairs poses the question: Are we ensuring that system resources are used in the “most proportionate, efficient, effective and timely way to ensure the best possible outcomes for children and families?” This paper argues that the issue of effective use of system resources is equally applicable to Northern Ireland. It discusses the expectation that the Children (Northern Ireland) Order 1995 implemented on 4 November 1996 would deliver a re-balancing of the relationship between the State and the family, with emphasis on prevention and early intervention and with less demand for crisis-orientated services. The statistical evidence generated by agencies involved in Children Order proceedings suggests that this expectation was not met. The statistics on the number and length of Care Order applications suggest the use of compulsion has increased and, it is argued here, that the result of this is that the resource demands of the legal process affecting all of the agencies that support this process have also increased. It is also argued that by continuing to direct resources toward the legal process, the availability of resources for early intervention and for the prevention of cases coming before the court in the first place is reduced.