"This Man with Dementia" - 'Othering' the Person with Dementia in the Court of Protection

Abstract

In recent years, dementia has been subjected to an increasing ethical, legal, and political gaze. This article analyses how the Court of Protection considers the perspective of the person with dementia when making best interests decisions on their behalf under the Mental Capacity Act 2005. The article draws upon feminist and disability literature to highlight how the Court has, on occasions, ‘othered’ the person with dementia during the process of making best interests decisions. This is despite law and policy increasingly emphasising that the views of the person who lacks capacity should be central to any best interests decision, as well as emphasising the importance of de-stigmatisation of cognitive impairments, such as dementia. Finally, using examples from recent cases, it is argued that by adopting an intersubjective approach, and by recognising and exploring the complexity of the relationships that the person with dementia has, the Court can go some way to avoiding the process of ‘othering’.