Mental Capacity Law in Contract and Property Matters

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By Jaime Lindsey and Benjamin O’Connell

Mental capacity law could impact all of us at some point in our lives. When a person’s decision-making capacity becomes impaired, it can lead to a best interests decision being taken on their behalf under the Mental Capacity Act 2005. A best interests decision could be taken by professionals caring for the individual, those with authority to do so such as Deputies, or the Court of Protection (CoP). While health and welfare decisions in mental capacity cases have been increasingly researched, the jurisdiction relating to property and affairs has had much less scrutiny, despite it making up a significant proportion of the CoP’s workload.

Given this gap in focus, the University of Essex School of Law and Human Rights Centre are hosting a hybrid event on 5 October 2022 in conjunction with the Mental Diversity Law Network (MDLN). The MDLN is an interdisciplinary network of approximately 200 people with academic, professional and/or lived experience of mental differences or difficulties, caregivers and other stakeholders with an interest in the law as it relates to mental diversity.

The event will bring together a range of academics, practitioners, individuals with lived experience and others to discuss the role of mental capacity law in helping individuals to manage their property and finances. The event will consider a wide range of issues, including the capacity to contract, capacity to make a will, supported decision-making and safeguards to protect against financial abuse.

The event will consist of two panels.

The first will discuss the role of support in managing property and finances, including issues that arise under the United Nations Convention on the Rights of Persons with Disabilities. This may include practical barriers individuals face, access to documentation and general accessibility of support and benefit services, as well as what legal responses can be operationalised to better secure support. Speakers on this panel include Clíona de Bhailís from the National University of Ireland, Galway, Professor Rosie Harding of the University of Birmingham, and Support Workers from Outside Interventions, Shonaid and Andy.

The second panel will discuss the role of mental capacity law in England and Wales in this area and include three speakers. John Howard, a lawyer in the Property and Affairs Team of the Official Solicitor and Public Trustee; Gareth Ledsham, Partner at Russell Cooke; and Her Honour Judge Hilder Senior Judge of the Court of Protection.

This free event will be held Wednesday 5 October 13:00 – 17:00 at Wivenhoe House Hotel, Colchester, as well as online via Zoom. Please register in advance here. The organisers welcome questions and interaction from audience members and any queries about the event can be directed to Dr Jaime Lindsey at

Freedom and Proportionality: A Workshop

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We are delighted to announce the details of a fascinating workshop taking place on 29-30 August 2022 in Molyvos, Greece. This international workshop aims to explore the relationship between freedom and proportionality, bringing together human rights law doctrine and philosophical theorising.

It will do so by pursuing two main themes:

  1. Is there a morally valuable – albeit overridable – freedom to engage in potentially harmful behaviour or should the concept of freedom be inherently limited by the reasonable interests of others?
  2. Is the proportionality test, as applied in human rights law, committed to a particular philosophical conception of freedom? If so, is that conception morally justified?

Underlying these abstract questions are urgent issues of practice about the balance between the individual and society, the correct interpretation and application of rights, and the role of courts and other state institutions in their protection. For example, the relationship between freedom and proportionality is at the heart of controversies over the lawfulness of government measures aiming to tackle the COVID-19 pandemic such as restrictions of movement and economic activity and compulsory vaccinations.

The issue is typically framed in terms of the proportionality between the public benefit of these measures and the intensity of the interference with human rights. However, for many scholars, this framing is deeply problematic. It assumes that such restrictions amount to losses of valuable rights, which must be offset by an overriding public benefit. But, so the argument goes, we do not have even a prima facie right to be a public threat e.g. by carrying a contagious virus. To think otherwise is to assume a highly individualistic and antisocial notion of personal freedom. And yet arguably this assumption underpins the proportionality doctrine, inasmuch as claimants must clear a relatively easy hurdle to establish that a restriction amounts to a prima facie interference with their human rights. As a result, almost any activity or personal preference, however harmful, triggers a proportionality assessment.

By ensuring that proportionality best reflects moral notions of freedom, we vindicate it and guide its use towards the optimal results. The workshop has this dual aim, to elucidate legal doctrine through sustained theoretical scrutiny and improve it, so that it can successfully address contemporary challenges in human rights law.

The workshop is hybrid. Most of the speakers will meet in Molyvos (Greece), the hometown of Stavros Tsakyrakis, who spearheaded the aforementioned line of attack against proportionality. But the proceedings will also be accessible via a Zoom webinar that is open to everyone. The workshop’s programme and registration details can be found below:

Celebrating the Very Best of Essex Research: Research and Impact Awards 2022

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The very best of Essex research was recognised at our Excellence in Research and Impact Awards 2022 ceremony at Colchester Campus on Wednesday 25 May 2022. The annual awards highlighted how the work conducted at Essex is having a positive impact on people’s lives across the globe. 

This year, a total of 21 awards were presented to research champions, impactful projects, and technical teams over the course of a three-hour event. The School of Law attracted four awards in four different categories:

The award for Outstanding Interdisciplinary Research went to Lorna McGregor (School of Law), Ahmed Shaheed (School of Law), Peter Fussey (Department of Sociology), and Human Rights Big Data and Technology colleagues for the world-leading Human Rights, Big Data, and Technology Project.

Alexandros Antoniou received the Research Visibility Champion award for the Faculty of Arts and Humanities.

Julie Hannah won the award for Best Research Impact by an Early Career Researcher for the Faculty of Arts and Humanities. The award was for her project titled Closing Protection Gaps in International Drug Control: The International Guidelines on Human Rights and Drug Policy.

The award for Best UK Public Policy Research Impact went to Wayne Martin (School of Philosophy and Art History), Sabine Michalowski (School of Law), Aaron Wyllie (School of Health and Social Care), Emily Fitton (School of Philosophy and Art History), Margot Kuylen, Vivek Bhatt and Thomas Hartvigsson for their AHRC project Ensuring Respect for Human Rights in Locked-Down Care Homes.

Tara Van Ho was a runner-up for Best International Research Impact for her work that helped Twitter devise new content policies for tackling online misinformation about the ongoing Ukraine-Russia conflict and other humanitarian crises.

“These awards are another fantastic indicator of how Law School research is having an enormously important impact at so many levels of society beyond the academic world. This was recognised by the recent Research Excellence Framework which rated over 70% of the Law School impact work from 2014-2021 as being world-leading. With these awards, we see that there has been no let up. The Law School continues to strive to be world-class at using its research to make a real difference to law, policy and people.”

Prof. Chris Willett, Director of Impact, School of Law

You can see this year’s winners and runners-up for each of the ten award categories here.

The awards are open to all academics, researchers, and doctoral students each year and signal the University’s commitment to world-class research that makes a difference.

Congratulations to everyone involved!

New Antwerp-Essex Collaboration on Socio-Legal Methods 

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Essex’s School of Law. which was ranked 3rd in the UK for research power in law (Times Higher Education research power measure, REF2021) is delighted to announce that its research environment is further enriched by a new collaboration with the Research Group Government and Law of the University of Antwerp.

One of the key objectives of this partnership is to establish a solid network, particularly (though not exclusively) among early career scholars, to connect with researchers beyond the respective faculties, provide training on different topics related to socio-legal methods and ultimately strengthen both institutions’ international and interdisciplinary ties.

The University of Antwerp campus (image from Openverse)

The new exciting partnership was launched on Monday 16 May 2022 with an event titled The Opportunities and Challenges of Socio-Legal Methods. This inaugural workshop featured contributions by legal scholars from both universities and a keynote speech by Prof. David Cowan from the University of Bristol.

“The event provided an excellent opportunity for cementing our research partnership with the University of Antwerp. As Prof. Cowan, our keynote speaker from the University of Bristol, put it: ‘this is an ambitious and exciting connection’ especially because ‘sociolegal scholarship is all about the community’. There are clear commonalities and synergies between Antwerp and Essex researchers both in terms of subject matter and approach. The launch event provided an excellent forum for exchanging views and an opportunity for research networking for young researchers who are eager to ask questions about trust and legitimacy in the law using socio-legal methods in order to address contemporary issues and challenges.”

Prof. Theodore Konstadinides, Director of Research (School of Law, University of Essex)
The University of Essex campus

“This complementarity between the Antwerp and Essex leads us to consider further workshops next year. We plan to offer workshops on methods ‘tailored to the needs of lawyers’, looking at providing an overview of the available methods before dipping into concrete illustrations of how these methods have been used by colleagues. When it comes to events around thematic areas, our shared interests cover vulnerable people, power relationships, sustainability, access to resources, and legal effectiveness – to name a few potential areas for future collaboration. So, watch this space!”

Dr. Yseult Marique. Senior Lecturer and International Cooperations Coordinator (School of Law, University of Essex)

How Tech Companies Can Tackle Violence Against Women and Girls (VAWG): A VAWG Code of Practice

Photo by Katherine Hanlon

The Online Safety Bill presents an opportunity to address violence against women and girls in its digital dimensions and hold accountable the tech platforms that profit from this abuse.

But if the new law passes in its current format, it will leave women and girls facing violence and the threat of harm in their everyday online interactions.

In an event, co-hosted by Maria Miller MP and Baroness Nicky Morgan, experts, and leading organisations will discuss how the Online Safety Bill provides an essential vehicle to hold tech companies accountable for preventing and tackling VAWG and why a VAWG Code of Practice must accompany the Bill, to ensure tech companies take proactive steps to prevent VAWG in a comprehensive and systematic way.

The End Violence Against Women Coalition, Carnegie UK, Lorna Woods (Essex Law School), Clare McGlynn (Durham Law School), Glitch, NSPCC, Refuge, and 5Rights have worked together to develop a VAWG Code of Practice (CoP) that meets the rights and needs of women and girls, including those experiencing intersecting inequalities.

The CoP sets out how the regulator will recommend tech meets their legal obligations to identify, respond to and prevent VAWG on their platforms. A copy of the CoP can be downloaded here:

This would create safer online spaces for women and girls – spaces where action is taken to prevent abuse, perpetrators and the platforms that ignore this abuse face consequences, and our self-expression is not restricted by the threat of violence.

Register for the event here.

Research Seminar: Posthuman International Law and the Rights of Nature

Photo by Evangeline Shaw

Dr. Emily Jones, Senior Lecturer in Law, University of Essex, will lead a seminar on the theme of ‘Posthuman International Law and the Rights of Nature’.

The rights of nature are beginning to be recognised in many countries but have yet to be recognised in international law.

Seeking to challenge and re-think the anthropocentrism that permeates International Environmental Law, this seminar will discuss the synergies between posthuman theory and the legal recognition of the rights of nature, reflecting on the application of both to international law.

The lecture will draw on multiple examples of contexts where nature’s rights have been recognised, including in New Zealand, India, Ecuador, the US, and beyond, to think through the similarities and differences between these contexts and the lessons to be learned.

Reflecting on the possibility of the recognition of the rights of nature in international law, the talk will conclude with an evaluation of the ways that posthuman theory can be applied to help inform the rights of nature project, seeking to ensure that the rights of nature live up to their transformative posthuman potential. 

The seminar is organized by Dr. Matilda Arvidsson, as part of the project ‘AI, the social contract, and democracy’, financed by WASP-HS in collaboration with the international law and environmental law groups at the Department of Law of the University of Gothenburg.

The seminar is open to researchers, students at an advanced level, and the public.

No registration is needed.