Camillia Kong | Queen Mary, University of London (original) (raw)

Papers by Camillia Kong

Legal Studies

The context- and person-specific nature of the Mental Capacity Act 2005 (MCA) in England and Wale... more The context- and person-specific nature of the Mental Capacity Act 2005 (MCA) in England and Wales means inherent indeterminacy characterises decision-making in the Court of Protection (CoP), not least regarding conflicting values and the weight that should be accorded to competing factors. This paper explores how legal professionals frame and influence the MCA's deliberative and adjudicative processes in the social space of the courtroom through a thematic analysis of semi-structured interviews with legal practitioners specialising in mental capacity law and retired judges from the CoP and the Courts of Appeal with specific experience of adjudicating mental capacity disputes. The concept of the ‘human element’ offers important new insight into how legal professionals perform their roles and justify their activities in the conduct of legal proceedings. The ‘human element’ takes effect in two ways: first, it operates as an overarching normative prism that accounts for what good p...

Transcultural Psychiatry, 2021

The widespread use of faith-based and traditional healing for mental disorders within African con... more The widespread use of faith-based and traditional healing for mental disorders within African contexts is well known. However, normative responses tend to fall within two camps: on one hand, those oriented towards the biomedical model of psychiatry stress the abuses and superstition of such healing, whilst critics adopting a more ‘local’ perspective have fundamentally challenged the universalist claims of biomedical diagnostic categories and psychiatric treatments. What seemingly emerges is a dichotomy between those who endorse more ‘universalist’ or ‘relativist’ approaches as an analytical lens to the challenges of the diverse healing strands within African contexts. In this article, we draw upon the resources of philosophy and existing empirical work to challenge the notion that constructive dialogue cannot be had between seemingly incommensurable healing practices in global mental health. First, we suggest the need for much-needed conceptual clarity to explore the hermeneutics of...

International Journal of Law and Psychiatry, 2019

Respect for the sexual, reproductive, and relational choices of women with learning disabilities ... more Respect for the sexual, reproductive, and relational choices of women with learning disabilities remains unrealised to date, despite the autonomy-based focus of mental capacity law in England and Wales as well as the UN Convention for the Rights of Persons with Disabilities. Instead, such women appear trapped within a triple-bindwhere they not only act in ways that might reinforce oppressive norms around gender and disability, but they are mentally incapable of even making such self-subjugating choices. The triple-bind emerges for two reasons: first, learning disability is understood as an essentialist property that determines action; second, the normative logic of feminism and the social model of disability is bound to the binary between emancipationsubjugation, which excludes the nuanced and ambiguous agency of women with learning disabilities as a result. What is needed instead is an alternative framework of female agency that can accommodate a mode of ambivalence, indifference, inhabitation, and at times, complicityin other words, instances where women make choices that appear contrary to their emancipation from disabling, patriarchal norms or relationships. Women with learning disabilities navigate a complex nexus of norms, power relations, and relational connections, some of which are coercive and oppressive, yet simultaneously subjectively affirming and enabling. I argue for an alternative analytical framework of female agency in order to accommodate how women with learning disabilities undertake the complex negotiation of power and social norms, as well as render visible their agency in their sexual, relational, and reproductive choices.

Journal of Medical Ethics, 2019

Psychiatric genomics research protocols are increasingly incorporating tools of deep phenotyping ... more Psychiatric genomics research protocols are increasingly incorporating tools of deep phenotyping to observe and examine phenotypic abnormalities among individuals with neurodevelopmental disorders. In particular, photography and the use of two-dimensional and three-dimensional facial analysis is thought to shed further light on the phenotypic expression of the genes underlying neurodevelopmental disorders, as well as provide potential diagnostic tools for clinicians. In this paper, I argue that the research use of photography to aid facial phenotyping raises deeply fraught issues from an ethical point of view. First, the process of objectification through photographic imagery and facial analysis could potentially worsen the stigmatisation of persons with neurodevelopmental disorders. Second, the use of photography for facial phenotyping has worrying parallels with the historical misuse of photography to advance positive and negative eugenics around race, ethnicity and intellectual d...

American Journal of Medical Genetics Part B: Neuropsychiatric Genetics, 2018

The American journal of bioethics : AJOB, Jun 1, 2017

The American journal of bioethics : AJOB, 2017

Realizing the benefits of translating psychiatric genomics research into mental health care is no... more Realizing the benefits of translating psychiatric genomics research into mental health care is not straightforward. The translation process gives rise to ethical challenges that are distinctive from challenges posed within psychiatric genomics research itself, or that form part of the delivery of clinical psychiatric genetics services. This article outlines and considers three distinct ethical concerns posed by the process of translating genomic research into frontline psychiatric practice and policy making. First, the genetic essentialism that is commonly associated with the genomics revolution in health care might inadvertently exacerbate stigma towards people with mental disorders. Secondly, the promises of genomic medicine advance a narrative of individual empowerment. This narrative could promote a fatalism towards patients' biology in ways that function in practice to undermine patients' agency and autonomy, or, alternatively, a heightened sense of subjective genetic r...

Laws, 2015

Human rights have recently impacted on current conceptualisations of the rights and obligations o... more Human rights have recently impacted on current conceptualisations of the rights and obligations owed to individuals with impairments, culminating in the UN Convention for the Rights of Persons with Disabilities. Particularly significant is Article 12, where interpretations have heralded a “will and preferences” paradigm which rejects substituted decision-making mechanisms, even in situations where an individual should make personally harmful or unwise decisions about their treatment, care, or relationships. This paper explores problems with “strict” and “flexible” interpretations of Article 12, focusing specifically on safeguarding issues in cases of relational abuse, exploitation, and coercion. Drawing analogies with feminist arguments opposing violence against women in the domestic sphere, I challenge the private/public and individualistic account of autonomy which is implicit in interpretations of the “will and preferences” paradigm, and suggest that proponents of Article 12 shou...

Laws, 2019

Judges face a challenging task in determining the weight that ought to be accorded to the person ... more Judges face a challenging task in determining the weight that ought to be accorded to the person (P)’s values and testimony in judicial deliberation about her capacity and best interests under the Mental Capacity Act 2005 (MCA). With little consensus emerging in judicial practice, incommensurable values drawn from divergent sources often collide in such cases. This paper outlines strict and flexible interpretations of the MCA’s values-based approach to making decisions about capacity and best interests, highlighting the problematic implications for the normative status of P’s values and the participatory role of P in judicial deliberations. The strict interpretation draws a false separation between ascertaining P’s values and the intrinsic value of enabling P’s participation in court proceedings; meanwhile, the flexible interpretation permits judicial discretion to draw on values which may legitimately override the expressed values of P. Whether in the ambiguous form of internal and...

In May 2012, in A Local Authority v E and Others,' a best interests ruling was made under the... more In May 2012, in A Local Authority v E and Others,' a best interests ruling was made under the Mental Capacity Act 2005 to coercively treat a severely anorexic woman, E, against her will. The best interests decision was purportedly reached through a process of judicialbalancing; however there is something deeply unsatisfactory about this account. This commentary delves beyond the expressed balancing method and applies the tools of philosophical hermeneutics to both understand and challenge the best interests ruling in A Local Authority v E and Others. First, the hermeneutic concept of 'prejudice' makes explicit the implicit judgments determining the best interests decision in this case. Secondly the commentary challenges the best interests decision in two ways: (1) the hermeneutic emphasis on dialogical understanding provides grounds for questioning the judge's failure to integrate the views of E and her wider decision community (including family and long-term clinici...

Book synopsis: Bioethics urges us to question and debate fundamental moral issues that arise in h... more Book synopsis: Bioethics urges us to question and debate fundamental moral issues that arise in health-related sciences. However, as a result of Western dominance and globalization, bioethical thinking and practice has inevitably been shaped and defined by Western theories. With recent discussions centering on the relationship between culture and bioethics, it is important to consider how and to what extent can bioethics reflect and accommodate non-Western values and beliefs? Debatably, many scholars working in the field of ‘African bioethics’ seek to construct a bioethical practice that is grounded in indigenous African values. Yet, how relevant are ancient African cultural norms to the lives and realities of the 21st century Sub-Saharan-Africans? This edited volume explores bioethics in Africa from pluralistic and inter-cultural perspectives. The selected papers offer diverse theoretical and practical perspectives on the bioethical challenges that are common and specific to the li...

This chapter argues that the complex phenomenology of self-harming, egosyntonic disorders—such as... more This chapter argues that the complex phenomenology of self-harming, egosyntonic disorders—such as borderline personality disorder (BPD)—demands a more nuanced approach to mental capacity. Individualistic and procedural assumptions in the current functional model of mental capacity fail to pinpoint why decision-making capacity is problematic in such cases, while authenticity-based accounts tend to rest on circular accounts of authenticity and mental disorder. Both struggle because there is a reluctance to engage in some of the more complex evaluative content around what it means to be a capacitous and autonomous self. Instead, one should not shy away from the more substantive criteria of capacity, which is embedded in a more relational approach, where we consider the normative content of relations-to-self that are characteristic of autonomy or heteronomy, irrespective of diagnostic criteria and psychopathology.

This paper offers a critique of Christine Korsgaard’s interpretation of Kantian instrumental reas... more This paper offers a critique of Christine Korsgaard’s interpretation of Kantian instrumental reason. Korsgaard understands Kantian hypothetical imperatives to share a common normative source with the categorical imperative – namely self-legislating, human rational agency. However, her reading of Kantian hypothetical imperatives is problematic for three reasons. Firstly, Korsgaard’s agent-centred approach renders incoherent Kant’s analytic-synthetic division. Secondly, by minimising the dualistic framework of Kant’s practical philosophy the dialectical character of practical rationality is lost: norms of instrumental reasoning therefore become confused with those of moral reasoning. Thirdly, this in turn curtails the distinct critical authority of pure practical rationality over instrumental choice. The paper argues that we need to understand the normativity of instrumental rationality through the lens of Kant’s dualisms. An alternative interpretation is offered which highlights how ...

The Mental Capacity Act 2005 governs personal decision-making for adults. It incorporates five ov... more The Mental Capacity Act 2005 governs personal decision-making for adults. It incorporates five overarching principles, including that incapacity may not be inferred merely from a person's unwise decisions and that where a person lacks capacity decisions must be made in her best interests. Through analysis of judicial treatment of unwisdom, best interests, subjectivity and objectivity, considered against parliamentary debates on the Mental Capacity Bill and philosophical critique of ideas of (un)wisdom, we argue that these principles are problematically irreconcilable. The Act's radical under-specificity means, paradoxically, that this comes to be resolved through abstracted values, rather than the centricity of the person herself.

Medical Law Review

The balance sheet is commonly used as a deliberative approach to decide best interests in Court o... more The balance sheet is commonly used as a deliberative approach to decide best interests in Court of Protection cases in England and Wales, since Thorpe LJ in Re A (Male Sterilisation) described the balance sheet as a tool to enable judges and best interests decision-makers to quantify, compare, and calculate the different options at play. Recent judgments have critically reflected on the substance and practical function of the balance sheet approach, highlighting the practical stakes of its implicit conceptual assumptions and normative commitments. Using parallel debates in proportionality, we show that the balance sheet imports problematic assumptions of commensurability and aggregation, which can both overdetermine the outcome of best interests decisions and obfuscate the actual process of judicial deliberation. This means that the decision-making of judges and best interests assessors more generally could fail to properly reflect the nature of values at stake, as well as the skill...

Developing World Bioethics