What follows may not seem to have any relevance to you at the moment. It may appear to be of merely academic interest.
However, are you quite sure that your life path is one that accords with Social Services’ view of how you should be living? Do you smoke? Do you drink? Do you enjoy the occasional hamburger? A recreational drug at week-ends? Do you think you should be free to decide how many children you have in your family? Perhaps you should read on in that case.
They have not ‘come’ for the Smokers and the Drinkers yet – but they have the weapon to do so, so perhaps you ought to be speaking up…..
The doctrine of human rights rests upon a particularly fundamental philosophical claim: that there exists a rationally identifiable moral order, an order whose legitimacy precedes contingent social and historical conditions and applies to all human beings everywhere and at all times.
Foremost amongst these are the ideals of equality and the moral autonomy of rational human beings.
Autonomy can be defined as the right to self determination; the right to take personal responsibility for ones own decisions. The Mental Capacity Act was billed as an attempt to extend that autonomy into the hands of others, so that if ‘incapacitated’ decisions could be made on your behalf that would reflect the decision you would have made yourself, had you not been incapacitated.
The idea that another person could follow your decision making process and arrive at the ‘correct’ result was always flawed. It is an idealistic notion that overlooks human traits such as greed, and a desire to influence or control others. Would a Mother who was adamantly opposed to abortion make the decision on behalf of her daughter that her daughter should have an abortion if the daughter was unable to take that decision herself? It is asking a lot of human emotion.
I have always been adamantly opposed to the Mental Capacity Act, I wrote at the time that we were ‘sleep walking towards allowing the legislature to contain and control our lives in ways which we scarcely understand’. My concern was more far reaching than the question of family divisions over moral questions such as abortion. My concern was that the Act provided the means by which the Government and its agents could seek to impose far reaching decisions on us all – extending to life and death – by the simple expedient of ‘exercising our autonomy’ for us in our ‘best interests’.
My voice was drowned out by the weight of Government spin detailing the ways in which this Act would offer more ‘choice’ to selected case histories – the man with learning disabilities who would now be able to force his care home to give him a boiled egg for his tea if he so chose was one of the more laughable examples.
I was also sorely exercised by the fact that this area of law operates in near total secrecy, and that we were being fed one or two high profile cases to persuade us that all such matters were being examined in minute detail by experienced senior judges. I wrote of Mr and Mrs T, when the High Court in a highly publicised case, decided that the Doctors should not continue medical treatment of their son, thus allowing him to die, much against their wishes. That was 15 months ago – Baby ‘T’ will not have been the last child allowed to die against his parents wishes, but you have heard no other similar cases in the media, thy are swept under a carpet of silence.
The media are slowly waking up to the insidious manner in which this Act allows the State to take decisions, far from being the decision you might have taken, and instead allows for their preferred outcome. Indeed a little observed judgement, laid bare the subtle change that had been wrought under our noses.
In Re P (Statutory Will)  EWHC 163 (Ch);  Ch 33, Lewison J at  –  indicated that the 2005 Act marked a radical change in the treatment of persons lacking capacity. The overarching principle was that any decision made on behalf of a protected person must be made in his best interests. That was not (necessarily) the same as inquiring what the protected person would have decided if he or she had had capacity. Best interests was not a test of “substituted judgment” (what the person would have wanted), but rather required a determination to be made by applying an objective test as to what would be in the protected person’s best interests.
So much for extending ‘our’ autonomy.
This week we have been offered another ‘show trial’ to assure us that we have nothing to fear from this Act; a few of the rarely published Court of Protection hearings have been published.
We hear of a young Mother, a married woman, in a happy supportive marriage. Social Services have taken away two of her children for adoption over ‘fears’ that she would not be able to look after them, because, in their opinion she is ‘too stupid’ and probably wouldn’t have been able to manage. That is a scandal in its own right, although there are those who will defend the decision. What follows will take your breath away. Social Services decided that they did not want the bother of having to take any more children away. They decided that she should have a permanent contraception device implanted. She did not want one. Her husband did not want her to have one.
Social Services decided therefore, that they would have her forcibly removed from her home, anesthetised against her wishes, and the contraception device forcibly implanted. Under the terms of the Mental Capacity Act they argued that her decision that she did not want this operation was not in her ‘best interests’.
This time, the Judge decided against allowing Social Services the right to enforce contraception. This time the case was published.
However, the council withdrew its demand to use force before the hearing, so the question of whether it was appropriate to have the police stand by as she was forcibly sterilised was not explored.
The judge said Mrs A’s social worker admitted “there would need to be police involvement” and it would be a “horrendous prospect” for her to be “physically removed from the family home and taken to have contraception under restraint and anaesthesia”.
Nothing in this ruling rules out such action in the future. Nor will we necessarily be treated to a case report in future. In the case of Re “E”, a man with learning difficulties who was forcibly removed from his family home, it was admitted that about 10% of the work in the Family courts is taken up with such cases. Cases we hear nothing of. Cases which they simply do not have the time to debate at length.
This illustrates a major difficulty which Judges of the Family Division are currently experiencing with cases in this field. The changes brought about by the Mental Capacity Act 2005 have increased the role and work of the Court of Protection The issues arising in such cases are often extremely complex and require lengthy consideration, but they are also urgent and require speedy determination. […] I understand that about ten per cent of the Division’s judicial time is at the moment being taken by Court of Protection work, although there has been no corresponding increase in resources. In this case, the court has had to accommodate this overrunning hearing in the middle of other pressing business. Urgent attention needs to be given to increasing the resources of the Family Division to deal with these difficult and urgent cases.”
At the moment we are only hearing of the ‘horrendously disabled baby’ that must be allowed to die; of the woman with cancer ‘forced to have life saving treatment’; of the Mother will a low IQ whose children were forcibly removed – and we cluck and say, ‘mmmn, well, you can see their point, sad case and all that’.
We are not hearing of all the other cases which are taking up 10% of the Family Courts time, nor are we appreciating that a quiet revolution is taking place, legal precedent is being set which allows that decisions be forced upon us ‘in our own best interests’ – that making a decision which Social Services don’t agree with is in itself evidence of mental incapacity, allowing them to invoke the Act.
“Don’t want to give up smoking? It’s in your ‘best interests’, off to the Canvey Island nicotine reprocessing centre with you” – by court order.