Case Note: N v Romania (Application No 59152/08, Decision of 28 November 2017

A case note discussing N v Romania (Application No 59152/08, Decision of 28 November 2017)

With and Without 'Best Interests': the Mental Capacity Act 2005, the Adults With Incapacity (Scotland) Act 2000 and constructing decisions

This article compares the bases upon which actions are taken or decisions are made in relation to those considered to lack the material capacity in the Mental Capacity Act 2005 (‘MCA’) and the Adults with Incapacity (Scotland) Act 2000 (‘AWI’). Through a study of (1) the statutory provisions; and (2) the case-law decided under the two statutes, it addresses the question of whether the use of the term ‘best interests’ in the MCA and its – deliberate – absence from the AWI makes a material difference when comparing the two Acts. This question is of considerable importance when examining the compatibility of these legislative regimes in the United Kingdom with the Convention on the Rights of Persons with Disabilities (‘CRPD’).The article is written by two practising lawyers, one a Scottish solicitor, and one an English barrister. Each has sought to cast a critical eye over the legislative framework on the other side of the border between their two jurisdictions as well as over the framework (and jurisprudence) in their own jurisdiction. Its comparative analysis is not one that has previously been attempted; it shows that both jurisdictions are on their own journeys, although not ones with quite the direction that might be anticipated from a plain reading of the respective statutes

Taking part and playing parts: Musical identities, roles, participation, and inclusion at Dartington International Summer School

Dartington International Summer School of Music (DISS) is an annual residential summer festival of predominantly classical musical learning and performance. Open since 1948 to amateurs, aspiring and established professionals, it represents an unusually diverse and multi-generational musical community. This study explores this Utopian vision of inclusive music-making through a qualitative ethnographic case study, utilizing unstructured interviews, observations, participant diaries and field notes. It addresses the following research foci: residents’ musical identities in relation to their musical background, expectations, and aspirations; playing roles at DISS; relationships with the act of making music and musical participation; and concepts of musical inclusion in the DISS context and beyond. Framed by conceptions of Utopia and the carnivalesque, and drawing on the sociology of work and leisure as well as theorisations of musical and dialogic identity, the study finds that DISS plays a significant role in the development and possible disruption of musical identity, allowing for creative risk-taking and the emergence of a ‘DISS identity’. Playing different musical roles – learner, teacher, performer, ensemble member, audience member - opens up the possibility of new, fluid, relationships with musical behaviours, as well as re-imagining and interrogating conceptions of musical talent. A ‘DISS pedagogy’ is discussed, which at its best draws on principles of dialogic teaching to include a diverse range of learners, whilst also presenting challenges in relation to teaching this mixed community. DISS is considered as a site for alternative performance practice in terms of audience-performer relationships, tutors as performers, and amateur-professional collaborations. Tensions between musical process and product, participation and ‘standards’ are revealed, as well as subtle hierarchies of socio-economic status and longevity of attendance. The potential of DISS as a site for musical inclusion is revealed to be richest in terms of inter-generational music-making possibilities

Editorial

This issue's editors discuss the debate which has emerged between two of the journal's contributors and the President of the Victorian Mental Health Tribunal, and take us through the articles which follow the exchange of opinion

Law and rhetoric: Critical possibilities

What contribution can rhetoric make to socio‐legal studies? Though now a byword for deception and spin, rhetoric was long identified with the very substance of law and politics. Latterly radical scholars have foregrounded an understanding of law as rhetoric in their polemics against legal formalism, but it needs to be complemented by a critical perspective which goes beyond simple revivalism, taking account of rhetoric's own blind spots, inquiring into the means by which some speakers and listeners are privileged and others excluded or silenced. The critical potential of legal rhetoric is tested here through a review of the developing law on mental capacity and the best interests of people with disabilities in England and Wales. Much of what is at stake there is properly grasped in terms of a politics of speech: who is addressed, who can speak, who must speak, and how are they represented in judicial and media discourse