Professor Rosie Harding, Birmingham Law School's Professor of Law and Society, has been awarded a prestigious British Academy Mid-Career Fellowship to work on a project entitled Everyday Decisions: Interrogating the interface between mental capacity and legal capacity.
The right to equal recognition of all persons before the law is a long-standing legal principle. People with intellectual disabilities are often denied their right to equal treatment before the law. This is usually because of perceived limitations in their ‘mental’ capacity, or their ability to make and communicate decisions. This project will interrogate how socio-legal understandings of 'legal' and 'mental' capacity interact in the everyday lives of people with intellectual disabilities, in order to generate new approaches to better support their everyday legally-relevant decision making.
We interviewed Professor Harding to find out more about her research and the ways that alumni can get involved.
How did it feel to be awarded the British Academy Fellowship? What impact will the award have on your research?
It is a great honour to get a BA Mid-Career Fellowship. Time is a precious commodity in academia, and this Fellowship will give me enough of it to really interrogate the questions that motivate me as a legal scholar. Usually, research has to be carefully balanced with teaching, management duties, and supervising PhD students. Having spent significant proportions of the last few years in leadership roles in Birmingham Law School, I am delighted to be able to immerse myself in research again. It is extremely exciting to be looking forward to a full year of intensive research time, where I can focus all of my attention onto one of the great problems of disability law.
How did you become involved in this area of research?
My research has always focused on the place of law in everyday life. I’m interested in how law, rules, and regulations shape our everyday experiences, and the ways that everyday uses of law feed back into social and legal change. In the past, I’ve written about this in relation to family law and especially recent legal changes like anti-discrimination law and same sex marriage.
I’ve spent the last five years working on research around caring and law. My forthcoming monograph, Duties to Care: Relationality, Dementia and Law (2017, Cambridge University Press) explores family carers’ experiences of navigating the complex intersecting legal frameworks that regulate dementia care. In recent years, dementia has become increasingly visible in the social and political landscape, yet the experiences of family carers have not improved significantly. Law in this area is very complicated, because dementia care intersects many different areas of law, including family law, medical law, taxation and succession law, mental capacity law, and social work law.
Whilst undertaking this project on dementia care, I became very interested in how the right to equal treatment under the law, which includes the right to hold and exercise legal capacity, is implemented in law. Whilst this right is guaranteed by Article 12 of the UN Convention on the Rights of Persons with Disabilities, many jurisdictions still allow for guardianship, enforced treatment, or objective ‘best interests’ decision making for people with intellectual and psychosocial disabilities.
What new approaches do you think could be applied to existing regulatory frameworks in order to better guarantee equal treatment for all before the law?
The Committee on the Rights of Persons with Disabilities have suggested that supported decision-making is the solution to protecting Article 12 rights. This, however, raises a number of difficult questions that I hope to address through this research project. I’m planning to do some empirical socio-legal research, to find out how people with intellectual disabilities make legally-relevant decisions in their everyday lives, and how these decisions are currently supported by formal and informal caregiver and supporters. I will use this to develop theoretical and legal understandings of decision-making capacity that can help to protect disabled people’s rights to equal treatment under the law.
How can alumni support your research?
I’d be delighted to hear from alumni with personal or professional interests in mental capacity law or with connections to intellectual disability groups, charities or NGOs. This project will be the beginning of a larger research agenda on intellectual disability, mental capacity and law, and there may be scope for alumni to become involved as partners in future activities relating to this research.
If you would like to volunteer to support Rosie’s research please contact Bryoney Johnson, College Alumni Relations Manager, at b.r.johnson@bham.ac.uk.