Just a Feint Glimmer of Light.
The focus of mental health activists for many years has been ‘deprivation of liberty’ – if you look at the case load of the majority of lawyers who claim to specialise in mental health legal abuses, you will find that they have been mainly engaged in opposing orders made under the Mental Health Act for the loss of physical liberty, commonly known as ‘sectioning’.
Unfortunately, there is no single legal definition of ‘deprivation of liberty’ – so from the layman’s point of view, if you haven’t been physically locked up, you haven’t been deprived of your liberty.
Liberty comes in many different forms. It is not just the ability to walk through an unlocked door – it is the liberty to make your own decisions around all manner of things.
Fortunately, after a rocky start – the original Article 5 of the 1950 European Convention on Human Rights managed to lump the mentally ill in with drug addicts, vagrants, and those suffering from unmentionable infectious diseases as being persons not considered worthy of having their human rights protected.
Article 5
1…. no one shall be deprived of his liberty save in the following cases… (a) the lawful detention of a person after conviction by a competent court; (e) the lawful detention of persons for the prevention of the spread of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;
European lawyers and legislators have taken a more enlightened approach. Thomas Hammerberg is the Commissioner for Human Rights, a non-judicial role on the Council of Europe. He has been examining the role of ‘Guardianship’ in curtailing the liberty of the mentally incapacitated and concluded that:
The bulk of the legal capacity systems in Europe are out-dated and in urgent need of reform. The automatic loss of human rights of those placed under a guardianship regime is a practice which must be changed.
Being recognised as someone who can make decisions is essential for everyone who seeks to take control over his/her life and participate in society on an equal basis with others. Having legal capacity enables us to choose where and with whom we want to live, to vote for the political party we prefer, to have our health care decisions respected, to control our own financial affairs and to have access to cinemas and other leisure activities.
No exception should be made from the assumption that all adults of majority age have legal capacity. In a society respecting human rights also persons with intellectual and psycho-social disabilities must be included.
When you are considered to be mentally incapacitated, you are deprived of your legal capacity – in the eyes of the law, you become a ‘non-person’ and your wishes and decisions have no legal standing. Commissioner Hammerberg is of the opinion that this is contrary to the spirit and letter of The Convention’s Article 12 (on the equal recognition before the law) which signals a deeper understanding of equality: all persons with disabilities shall enjoy legal capacity on an equal basis with others in all aspects of life and shall be provided with the support they may require in exercising their legal capacity.
Part of the problem is the sheer ease with which you can experience a blanket removal of your legal capacity. Most mental capacity is lost NOT by evidence from expert witnesses, or even non-expert witnesses, or even corrupt expert witnesses, but by ordinary GPs, who, from the wording on the form, fondly imagine that they are merely asking for the Court Of Protection to ‘look into the matter’ rather than signing a mental capacity ‘death’ warrant. It then does take an ‘expert witness’ to pronounce on the matter if you are to win your capacity back.
Without legal capacity, you have lost the ability to litigate yourself, to challenge your situation. John Hemming MP is also heartened by the interest Thomas Hammerberg has shown in this less well publicised loss of liberty, and has e-mailed me to say:
“I have been unhappy about the ease at which people have their capacity to litigate removed in England and Wales and also that many decisions appear not to be even in accordance with the Mental Capacity Act 2005. There is no proper system of checks and balances relating to the removal of mental capacity. There are many decisions where to me even the Masterman-Lister test is not satisfied, but people are made into non-persons.
“Following that then there is the systemic complacency that leads to so many cases of maltreatment that are, of course, almost entirely secret. The system needs a major overhaul by parliament. I have written to the Minister and the Chair of the Select Committee making this point.”
Hammerberg’s statement is but a small step, but a profoundly important one in the right direction. A Human Rights challenge is what is needed.
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March 16, 2012 at 12:28 -
As someone who regularly trains consultants and other health care professionals this is an area that produces much debate. If you are sectioned under the mental health act you have a right to appeal, under the MCA you have no such right. Arguably they have tried to address this with the legislation around deprivation of liberty safeguarding (DoLS). Regardless, I and others I know stress that these are not decisions to be taken lightly “with great power comes great responsibility”. There is some very worrying practice out there but there are some of us trying to change it.
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March 11, 2012 at 22:18 -
Anna (Ms Raccoon?)
Understand that there are those of us (70+) who hang on every word you say on this subject. Your advice/analysis is invaluable. Please keep it up. -
March 8, 2012 at 19:06 -
This paragraph leapt out at me:
‘Being recognised as someone who can make decisions is essential for everyone who seeks to take control over his/her life and participate in society on an equal basis with others. Having legal capacity enables us to choose where and with whom we want to live, to vote for the political party we prefer, to have our health care decisions respected, to control our own financial affairs’.
It struck me that this is a fight many groups have had over the years. My current reading material brought into my mind the fight women had to have this sort of autonomy. It’s shudderingly awful that somone can find themselves in this no-person’s catch 22. And how close we all are to it! A tough year leads to a breakdown, leads to non-personhood where no authority can see you or hear you. A bell-jar of a whole different kind.
Thanks for this post Anna – things to think about indeed.
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March 8, 2012 at 18:41 -
Hi Anna,
Nice post. I think regarding litigation capacity we may well be out of step with the CRPD Article 12(4) and I think it’s possible the recent ECtHR ruling in Stanev v Bulgaria may be problematic too. I wrote a commentary on the implications for the MCA of Hammarberg’s paper here, but it is a bit dry:
I think it would be a very good thing if the JCHR did some post-legislative scrutiny on the MCA, or else a special inquiry onto Article 12 CRPD as they did for the ‘right to independent living’ recently. It’d be great to have a proper public debate on this, as it’s a very little discussed issue.
Incidentally, as a purely technical point, the decision on whether a client has litigation capacity rests with the solicitor themselves. They can seek guidance from a person’s GP, or another doctor, but ultimately there is no formal requirement that they use this evidence, and they also aren’t bound by it. So if, hypothetically speaking, you had a solicitor write to a GP asking if X has legal capacity, and the GP wrote back a crappy report on their capacity (perhaps they just ticked a load of boxes, perhaps they last saw the person in 2006, perhaps they didn’t consider what support could be put in place to help them attain litigation capacity… you get my point), then the legal responsibility for appraising the quality of that report rests with solicitors. I would like to see some decent guidance for solicitors on this, as GP’s aren’t necessarily expert on the MCA and assessing capacity. I also wonder what happens about the professional duty of confidentiality both the solicitor and the GP owe to the client… Does the client have to consent to them contacting each other? Do they have to be told?
Lucy
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March 8, 2012 at 17:24 -
Liberty is a benefit privilege granted to slaves or as in the case of seamen when they go ashore whilst still under the authority of a ship’s master. In other words liberty is not freedom.
Flesh and blood men and women who claim their freedom are the only people who are free.
All persons from the latin personna or mask i.e. fictions with titles Mr; Mrs; Ms; Miss from the word mystery (mistery) are slaves, who from time to time are granted liberty, otherwise known as Bank(ster) Holidays.
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March 8, 2012 at 17:09 -
Admittedly my comment is based on hearsay, but consistent hearsay: the GPs are frequently leant on by often well-meaning relatives and health/social service professionals who think that they know better than the individual what is good for him/her. The most frequent example is that someone wants to go home to die and some *person* decides that is not in their best interest – they should be ordered to stay in hospital to die. Even worse, my great-uncle [a veteran of the Great War (WWI), where he won a medal before being invalided out due to wounds and a “mention in despatches” in lieu of a second medal after returning returning to the Front] was drugged into inability to recognise his sister or myself because the modern nurse thought he couldn’t cope with the pain. He had lived with pain for more than fifty years …
Anna, I hope you mean “faint” rather than “feint” – the latter would imply that the glimmer is designed to mislead us while things are getting worse. I don’t think it is the legislation as such, more the abuse of the rules by people who think they know better.-
March 9, 2012 at 14:29 -
I believe it’s a combination of the legislation – which permits abuse – and the fact that the subject is of relatively little importance to those with the intellect and the capacity to stand up against it that allows this parlous situation to continue.
On a less serious note: I had wondered, on seeing the headline, whether there were any-one left at the Raccoon Arms that still played the local equivalent of shove-halfpenny: spotting the procyonic streptography. I see there is. An extra point, I think, for the insightful comment on it.
ΠΞ
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March 9, 2012 at 15:08 -
Legislation can only abuse ordinary people – it can do nothing else for it is only in place for the benefit of those who are members of The Law Society and Judiciary.
Legislation only applies to those who give their consent to it – which in turn means Legislation (acts & statutes) are not Law – they’re just legalese.
The so called Court of Protection is not a court. Any real Court must have a Jury. These so called courts are just unlawful administrative hearings – de-facto courts designed solely for profit and the defendant ALWAYS pays.
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March 9, 2012 at 16:02
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March 10, 2012 at 01:59 -
Having personal experience of abuses of the Mental Capacity Act by social workers (walked into room of elder shouting ‘I am acting in your best interests’ having been told that the elder had been deemed to have the relevant mental capacity for 3 decisions made by three different relevant professionals. Social Services in dispute with carer would not believe the elder had capacity (? for what decisions). The elder has fluctuating cognitive state. Carer feared elder would be ‘failed’ if he appeared more confused on day of assessment. Social workers do not understand fluctuations in cognition in older people, so i
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