Magna Carta, Ch 39: ‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land’.
We clutch the Magna Carta to our bosom in the manner of small children with a Teddy Bear. We imbue it with magic powers to protect us. We ignore the reality of the last six words – by the law of the land.
The tawdry fabric of our comforter is destroyed by those last six words. All it takes for the State to ‘proceed against us with force’ is for 324 bored, inefficient, untrustworthy, deceitful, and self obsessed souls to rouse themselves from their subsidised bar stools, half full of subsidised claret, and stumble through the ‘Aye’ lobby, as instructed by their whips, when the government of the day passes a complicated piece of legislation that they have barely glanced at – which allows them to ‘proceed with force’ against us. They will have created ‘the law of the land’.
Then the magic Teddy Bear becomes no more than a concoction of fur fabric and horsehair, with glass beads where we thought it had omnipotent eyes.
I apologise for banging on again about the insidious Mental Capacity Act – those of you who have taken careful note of my posts in the past must be heartily sick of me returning to the subject. Unfortunately there are still many millions of citizens who have not yet woken up to its power. Amongst them are the top flight journalists and civil rights defenders who should be shouting from the roof tops, but have been daunted by the difficulties of finding information or seduced by the set pieces of theatre that have been presented to them.
I restrained myself last week, when the main stream media chortled with delight at their success at being admitted to the latest farcical show ‘trial’.
A consortium of newspapers had got wind of the fact that the Duchess of Cornwall’s nephew, the concert pianist Derek Paravicini, had become embroiled in Court of Protection proceedings. They decided to test Jack Straw’s assertion that the hitherto ‘secret court’ would in future admit the press. After a legal wrangle with the Official Solicitor, the press were so admitted. It had a galvanising effect of the COP.
A situation that would normally be dealt with by a rubber stamping civil servant – an application from the family to be allowed to control Derek’s affairs as opposed to the courts ‘preferred option’ of a ‘professional deputy’ – code speak for one of the firms of personal injury lawyers who have been appointed as ‘professional deputies’ across the country, enabled to make myriad decisions of behalf of the court. The court does love ‘professional deputies’. They don’t clog up the works in the way that untidy members of the family do. They type their letters requesting funds, not handwrite them on difficult to read lined Basildon Bond. When they make an application for funds a month before Christmas, they don’t get hysterical when the money doesn’t arrive until late in February – in short they understand the COPs funny little ways.
Faced with unprecedented prying press eyes overlooking this cosy procedure, and a ‘celebrity family’ no less, normal procedure was dispensed with. The civil servants were elbowed out of the way. Even the Master of the court, Master Lush, who does see some 5 or 6 of the most contentious amongst the several hundred cases each week, overseas lecture trips permitting, was elbowed out of the way, and the full majesty of Mr Justice Hedley hauled his backside from the salubrious environs of the Strand out to lowly Archway where the court is now situated.
Anybody reading the reports would imagine that this much care and attention is always devoted to deciding whether the ‘parents’ are fit and proper people to make decisions for their offspring; those of us who know the court better than that, laughed hysterically at the pantomime, and wondered how many of the civil servants were able to gain access to the anti room and scoff the prawn sandwiches which would surely have been on the menu again after such an august event.
A few days later, the window into this arcane world was slammed shut again.
Still, I digress, as usual.
Having shown us how ‘caring’ and ‘thoughtful’ they are over the simplest of decisions, yesterday they allowed us another minute public peek into their world.
They decided that they would order a young woman with learning disabilities to be handed a glass of that sugary juice beloved of children – Ribena.
Sound so innocent doesn’t it?
They won’t tell her that concealed in that glass of Ribena is a sedative that will render her unconscious. They want her to be unconscious so that the ambulance that will have parked outside can load her up with the minimum of fuss and cart her off to the local hospital. They want her in the local hospital because the Doctors that have been treating her for cancer want to operate on her to remove her uterus.
She is not completely unaware of what is going on. She has decided that she doesn’t want surgery. A decision that many of us have made, myself included, just a few months ago. I was allowed to make that decision for myself. I am believed to have the mental capacity to do so, even if it should have led to my death. After months of treatment, it has turned out that I made the right decision and I am in fighting fit form once again.
My body, my right. In the event that I had lost my marbles completely and it was believed that I was not able to make that decision, I have legally given my husband, who knows me better than anyone, the right to make that decision for me.
However, this young woman has never had the capacity to hand her autonomous right to make that decision to anyone else by proxy. She has never been deemed to have the mental capacity to do so.
Meanwhile, back at the hospital, the Doctors have a problem. They have a duty of care to their patient, one that could see them sued for negligence if they do not operate on her, having decided that this is their choice of treatment for their patient. On the other hand, if they forcible hold her down and operate against her wishes, they could find themselves charged with assault and battery.
So they want ‘someone’s’ signature on the consent form to protect them from legal challenge. Do they really care whether this young woman lives or dies? I would argue not. She will die eventually anyway, we all do – but not whilst under their care. It is the ramifications of her doing so under their care rather than some belief in the sanctity of life that is driving them to the High Court. Either those same Doctors, or their colleagues, will at this very moment be engaged in forcibly snuffing out the life of another foetus ‘believed to be’ carrying the genes which denote Down’s Syndrome or some other malfunction from the ‘norm’ that Mother’s are conditioned to think themselves to be entitled to. Doctors can be incredibly pragmatic when it suits them.
When the Doctors arrive at the High Court, they have the upper hand, so to speak; it has long been ruled that the judiciary are not qualified to second guess a medical opinion. If the Doctor says that is the treatment he thinks best, then that is the starting point. The judiciary will only look at their legal powers to enforce that decision. Thanks to the Mental Capacity Act, they have the legal power to transform that young woman’s autonomous belief that she doesn’t want an intrusive operation into a legal instrument that will encompass not only the subterfuge required to get her into the ambulance, but also provide for the eventuality that she might awake from the operation and decide she wants to go home before the Doctors have finished covering their backsides. Should that occur:
After the operation, feeding tubes would be bandaged so she couldn’t pull them out and she would be given painkillers with a sedative effect “rendering it unlikely that she would be able to abscond”. However “it might be necessary to use force as a last resort to ensure that she returned to her hospital bed”.
The last time I heard of similar tactics being ordered was in the case of Terri Schiavo. Of course in that case the Doctors were following orders not to give her food or water, and damn, but she would keep getting out of bed to steal food from other patients in an effort to stay alive.
Your autonomy is precious. Give the proxy right to exercise it to someone you truly trust. Download the form here. You don’t have to pay to download the form or fill it in, you only need to pay if it is required to ‘use’ it.
If you don’t, the State reserves the right to exercise it on your behalf.
Apologies for banging on to those who have already taken note and protected themselves.