Friday, 5 December 2008

Nearest, dearest

The new Mental Health Act will change the way we see the nearest relative.

Now the Mental Health Act has been amended, it will provide new systems for the selection – and most importantly, the removal – of a patient’s nearest relative.

Where a person has mental disorder, her nearest relative (NR) has firm powers and entitlements: to apply for her to be detained under the Mental Health Act 1983 (MHA) or discharged, for example, and to be informed about an admission under section 2 or object to a proposed admission under section 3. The fact that a patient could not choose her NR was therefore a matter of great concern.

Some people even claim to have been abused by their NR, and the prospect of that person being involved in her life can prove detrimental to a patient’s mental health. Almost a decade ago, the Government acknowledged that this state-of-affairs might breach human rights, and it promised the European Court of Human Rights(ECtHR) that it would give patients more of a say in the selection of their NR. (FC v United Kingdom, Application no 37344/97, Decision of 7 September 1999; JT v United Kingdom, Application no 26494/95, Decision of 30 March 2000) The recent changes are an attempt to fulfil that promise.

Because the changes were so long in coming, practitioners began to devise ad hoc solutions of their own. Some, for example, argued that where abuse was alleged, it was “not reasonably practicable” to consult a NR about a patient’s proposed admission under section 3. (MHA, s 11(4)) Though this approach was considered dubious, it has been approved by the High Court. (E v Bristol City Council, [2005] EWHC (Admin) 74) But it is only a partial solution to the problem: even if he need no longer be consulted, a NR will continue to enjoy all the other powers and entitlements of the role. A more comprehensive solution was clearly required.

The changes
The amendments to MHA 1983 were made by the Mental Health Act 2007. The first one had little to do with the Government’s promise to the ECtHR. Since 1 December 2007, where two people are in a civil partnership, one has been the NR of the other. (MHA 1983, s 26(1)(a)) Most of the other changes, however, deal with the removal of the NR.

A patient can now apply to remove her NR (a right she shares with any relative of hers, any other person with whom she resides and an Approved Mental Health Professional). (MHA 1983, s 29(2)(a)-(c) & (za)) And there will be a new ground for displacement, which any applicant might use: the NR is “not a suitable person to act as such”. (MHA 1983, s 29(3)(e)) The amended Act does not say what this means.

That is not to say that ‘suitability’ has gone unmentioned. During the Parliamentary debates that produced the 2007 Act, the minister, Rosie Winterton, said, “we intend the idea of unsuitability to cover situations in which there is no effective relationship between the patient and the nearest relative, or where the relationship has broken down irretrievably.” (Hansard, 18 June 2007, col 1099) So, the circumstances in which a NR might be unsuitable will not be limited to abuse. In fact, the revised MHA 1983 Code of Practice says that an application might be appropriate if there is: "any reason to think that the patient has suffered, or is suspected to have suffered, abuse at the hands of the nearest relative (or someone with whom the nearest relative is in a relationship), or is at risk of suffering such abuse"; "any evidence that the patient is afraid of the nearest relative or seriously distressed by the possibility of the nearest relative being involved in their life or their care"; or "a situation where the patient and nearest relative are unknown to each other, there is only a distant relationship between them, or their relationship has broken down irretrievably." (Para 8.13)

Furthermore, the procedure by which a NR might delegate his functions to someone else is now contained in regulation 24 of The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008. (The old regulations have been repealed.) And there is new official guidance, which includes “Seven steps to identify the nearest relative”. (Department of Health, 2008, Reference guide to the Mental Health Act 1983, ch 33)

Patients now have some control over their nearest relatives and, in the most flagrant cases, can have them removed. But much of the law that pre-dated the recent changes remains in force. Though we might, for a while, become pre-occupied with the notion of ‘unsuitability’, we certainly haven’t seen the last of the question of ‘practicability’.

These changes are discussed in more detail in the second edition of my book, The Nearest Relative Handbook, which will be published by Jessica Kingsley Publishers in January 2009. More details may be found here.

Thursday, 27 November 2008

Adult social care is in urgent need of reform

That, at least, is the conclusion of the Law Commission, which is currently in the middle of a systematic review.

Around 2.5m people currently receive adult social care, which comprises such things as care homes, residential accommodation and day centres; equipment and adaptations; meals and home care; carers’ services and aftercare, and services for disabled children. For the last 60 years, it has been covered by a patchwork of laws, which the Commission now describes as “inadequate, often incomprehensible and outdated”.

One problem is complexity. “Given that the law has developed piecemeal since 1948,” the Law Commission says, “it does not provide a clear and principled approach to assessment and service provision.” It consists of more than thirty statutes and a plethora of other regulations and guidance, some of which overlap or even duplicate each other. There are, for example, at least three main statutory provisions placing duties on local authorities to carry out a community care assessment. And the Commission notes the words of Lord Justice Dyson, who in a case in 2007 expressed his “dismay at the complexity and labyrinthine nature of the relevant legislation and guidance, as well as (in some respects) its obscurity.”

For the Law Commission, this complexity leads to inefficiency. Because “too much time and money are spent on understanding the law and on litigation.” It might also stifle innovation and create “arbitrary differences in legal rights and status between different service users and different kinds of service.”

Outdated concepts
Because many of the Acts that make up adult social care law were passed many years ago, they are based on concepts of disability that can seem inappropriate today. The Law Commission suggests that there is, for example, a presumption in favour of institutional care for disabled and older people, which means that the community powers are much less certain. Language is also a problem. The key adult care provision is still the National Assistance Act 1948, but it speaks of “welfare arrangements for blind, deaf, dumb and crippled persons”. And then there is the question of whether medical language ever be used to determine eligibility for social services. The Commission wonders whether we should ask not “what is wrong with this person?” but “what is wrong for this person?”

The Law Commission wants to see if the legal framework for adult social care should be simplified and made more consistent, more transparent and more modern. It might be possible, for example, to put the various powers and duties concerning adult social care into a single statute, and to include overarching principles to help local authorities, the courts, service users and carers carry out their functions or understand their entitlements.

There might also be a single, simple duty to assess patients’ and their carers’ needs in the community. Furthermore, guidance on access to NHS continuing care might be clarified or refined.

The Law Commission says that rules that establish which local authority will be responsible for providing services could be reviewed, to address questions such as what ‘ordinary residence’ means and whether those rules compound the difficulties service users and carers face when moving from one area to another. It also suggests that where an individual must demonstrate that he falls within a particular category if he is to receive adult social care services, it might be possible to use the same classes throughout the legislation. And something could perhaps be done to update offensive and outdated terminology.

The rules concerning direct payments, which allow local authorities to give cash direct to service users so that they can themselves purchase the services that will meet their needs, could also be revised or simplified. It might also be possible – always providing it is desirable – to have a single, simplified provision obliging local authorities to recover payments for residential accommodation and giving them a discretion to do so for domiciliary and community care. And it might be possible to re-draw, or at least to clarify, the boundary between health services and care services. And consideration might be given as to whether health authorities and local authorities should be obliged to co-operate with each other.

Finally, the LC wants to consider whether the current adult protection framework should be put on a statutory footing; whether, and if so how, the definition of ‘vulnerable adult’ might be changed; whether local authorities should be obliged to investigate suspicions of abuse or neglect; and whether social workers and other professionals need wider powers to enter domestic premises where there are suspicions of abuse. In addition, the Commission proposes to review the power, contained in section 47 of the National Assistance Act 1948, to remove a person from his or her home to a place where he or she can be given the care and attention she needs and is lacking.

Few will disagree with its conclusions, but some might wonder whether the LC is best placed to do all the work it now wants to do. The adult protection framework and the direct payments system are already the subject of government reviews and a turf war would be terribly distracting. There will be little appetite for revisiting the continuing care system so soon after the government published what it hoped was comprehensive guidance. And the suggestion that health responsibilities and social care responsibilities might be divided up in a different way is likely to cause concern, not least within the NHS, which is widely thought – not least by the courts - to benefit greatly from the current arrangements.

The Law Commission’s report may be found here

Tuesday, 25 November 2008

Patients, their victims and the NHS

Health services now have much greater obligations towards the victims of their patients

On 3 November, most of the Mental Health Act 2007 came into force. Its main purpose was to amend the Mental Health Act 1983 (MHA). Now it has done that – and done it controversially – the 2007 Act will melt away. But it will leave behind some significant amendments to other acts of Parliament as well.

One of those amendments is to the Domestic Violence, Crime and Victims Act 2004 (DVCVA), which gives the victims of certain sexual or violent offenders the right to receive information over the course of the offender’s sentence and to make representations about any conditions to which he will be subject on release. (The offences in question, of which there are a great many, are those scheduled in the Criminal Justice Act 2003.)

Since 2005, similar rights have been available to the victims of offenders whom the courts have ordered to be detained in hospital and who are subject to special restrictions. Under MHA, restrictions may be imposed by the sentencing court if it considers them necessary to protect the public from serious harm.

The effect of the 2007 Act is to extend these rights to the victims of patients who, though they are detained in hospital by court order, are not the subject of special restrictions. The same rights will apply where such a patient is discharged from hospital onto Supervised Community Treatment (SCT).

To assist victims, there are new statutory duties. Many of the new duties will be owed to victims by the NHS trust responsible for the hospital in which an offender is detained. The MHA calls it the ‘hospital managers’.

It will usually be the responsibility of probation services to identify eligible victims and, with their consent, to pass on their details to hospital managers. Where a court sends an offender to hospital for mental health treatment, the managers will have to give information to his victims and pass on any representations they make.

Where a NHS body – such as a hospital trust or, in some cases, a PCT – has the power to discharge a patient from detention under the MHA or take him off SCT, it may only do so once it has considered any representations the patient’s victims have made.

Where a patient is detained in hospital by order of the court, the clinician with overall responsibility for his case must inform the managers if he is to be discharged or certain decisions are to be made about him. The clinician must also consider the representations of any victims when deciding what conditions to impose upon a patient who is discharged onto SCT. An approved mental health professional (AMHP) will also have to consider any such representations when deciding whether to agree to those conditions.

Guidance suggests that in order to discharge their new duties properly, hospital managers will need to have in place arrangements that allow them to: identify relevant patients and know which victims have asked to make representations or receive information; invite and pass on such representations; give victims required information and decide whether to give them additional information; and inform the managers of any new hospital that becomes responsible for a patient.

This will increase the workload of probation services, clinicians and AMHPs considerably. The greatest burden, however, is likely to be borne by NHS services. Official figures suggest that now the unrestricted have been added to the restricted, the number of patients whose victims enjoy DVCVA rights has increased by almost 50%.

The guidance referred to here was published by the Department of Health and the Ministry of Justice, and may be found here

And the public gets what the public wants

The NHS has a new duty to involve the public, one that could apply wherever new services are proposed or existing ones changed.

The duty was introduced on 3 November 2008, because, the government says, “NHS managers have not always been clear when they have to involve people and how best to do this.”

The changes realise a pledge made by Lord Darzi in May of this year. In his Next Stage Review, he told the public: “You will be involved ... Those affected by proposed changes will have the chance to have their say and offer their contribution. NHS organisations will work openly and collaboratively.” They are also consistent with the current NHS operating framework, which says “the NHS needs to get much better at listening and responding to the patients who use our services, the staff who provide them and the citizens who fund them”, and with the vision for World Class Commissioning announced a year ago.

The new duty isn’t the first, of course. Section 11 of the Health and Social Care Act 2001 dealt with public consultation, and its provisions were replicated in section 242 of the National Health Service Act 2006. (NHS Act) The new, strengthened duty has been introduced by the Local Government and Public Involvement in Health Act 2007, which inserts section 242(1B) to the 2006 Act.

The new sub-section says that in England, every SHA, PCT, trust or foundation trust should involve the public when it plans its services, proposes to change the way they are delivered or makes decisions that affect their operation. (NHS Act, s 242(1B)) This duty will apply to services the NHS body itself provides, and also to those provided on its behalf or at its direction. (NHS Act, s 242(3)) And it is for the benefit of ‘users’ that the change has been made. That means anyone who is using, or may use, the services in question. (NHS Act, s 242(1B) & (1F))

The circumstances in which the new duty will apply are considered in guidance published alongside it. They include where mental health services are reconfigured across a SHA or PCT area; where plans are made to provide hospital services from a different site; and where changes are made to the opening hours of a family planning clinic.

As to what ‘involvement’ means, the guidance says: “Think about proportionality and appropriateness, understand and use a spectrum of involvement, and know when to use the different activities which range from giving information through to active participation in planning the provision of services.”

Because of the 2007 Act, the NHS Act now includes a second new duty: to report on consultation. The government says, “the NHS does not always tell people what action they have taken in response to feedback”. This should change.

From April 2010, each SHA and PCT will have to publish a report, setting out its past and future consultations about commissioning and any influence they have had. (NHS Act, ss 17A & 24A) Directions made by the Secretary of State require the first such report to be published between April and September 2010 and to cover commissioning decisions in the previous twelve months.

Unlike the duty to involve, however, the duty to report applies only to primary care trusts and strategic health authorities that commission health care services; not to NHS trusts or NHS foundation trusts.

The guidance on the new duties is detailed, if a little convoluted. The government acknowledges, however, that although the NHS bodies must have regard to it, they will not be bound by it and may depart from it if they have good reasons for doing so. (In fact, case law says that any departure will have to be based on ‘cogent’ reasons, but it isn’t clear how they might differ from good reasons.)

The new duties are likely to be included in the new NHS Constitution, a consultation on which has itself just closed. The new constitution is due to come into effect in 2009. Before then, the government says SHAs, PCTs and trusts might: review the information they already have about community needs and ensure they are making the best use of it; consider the groups and individuals that have been consulted in the past and who should be consulted in future; think about what they want from future involvement, how it can be imbedded in their organisation and whether it can be linked to work on joint needs assessments; and decide what resources they will need in order to comply with their new duties.

Friday, 14 November 2008

A second edition ...

A second edition of my book, The Nearest Relative Handbook, will be published in January.

The book is intended to be a lucid, concise guide the role of the nearest relative and the way it might fall - or be given - to an individual. It should be of use not only to nearest relatives themselves, but also to Approved Mental Health Professionals, Responsible Clinicians and other practitioners; to patients, their families and carers; and to hospital managers, police officers, lawyers, academics and policy-makers.

The Nearest Relative Handbook sets out and explains the complex criteria by which a nearest relative is to be identified and the grounds upon which he or she may be displaced by the court, and it does that not only for adults, but also for children. The book also considers the duty of consultation that some professionals owe to nearest relatives, and other, associated issues, such as Mental Health Review Tribunal rights and information-sharing.

The book has been completely re-written for its second edition, and now includes a wealth of material on the changes made by the Mental Health Act 2007, which have particularly affected the process and grounds for displacement. It also has nearly 50 per cent more practical scenarios.

Review of the first edition were very favourable. They include:

An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject - Phil Fennell, Professor of Law, Cardiff Law School

This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area - Journal of Mental Health Law

The rules are comprehensively worked through and the examples clear - Tony Eaton, Solicitor, Brent Community Law Centre

There can hardly be a professional concerned with the Mental Health Act 1983 and its practical application who will not benefit from having this book to hand - New Law Journal

The second edition of The Nearest Relative Handbook will be published by Jessica Kingsley Publishers at £17.99. Further details, together with an order form, may be found here

Thursday, 23 October 2008

Here it is ...

The book that gives this blog its name was published today. A Tendency to Laugh and Sing collects together more than 50 of my essays, lectures and letters on mental health law and in the process, addresses some of the most contentious issues of the day. The pieces, which first appeared in publications such as The Times, the New Law Journal and the Journal of Mental Health Law, are about such things as seclusion, the Bournewood case and the reform of the Mental Health Act. Amongst many other things, they look at re-detention following discharge, the rights of incapable detained patients and the statutory immunity from suit, and one of them asks the question: what is a hospital? The book will be of great interest to anyone who is subject to or works with the Mental Health Act, and to lawyers, academics, clinicians and policy-makers. A Tendency to Laugh and Sing is available from the Northumbria Law Press for £24.99 (plus £4 postage and packing). Order your copy here.

Wednesday, 8 October 2008

While we unburthen'd ...

Health care resources are limited and NHS bodies are often faced with very difficult decisions. In another case about the funding of cancer treatment, the High Court has clarified the parameters within which those decisions must be made.

What we knew already

The courts have long been reluctant to intervene in decisions about the allocation of health care resources. (See, for example: R v Cambridge Health Authority, ex parte B [1995] 1 WLR 898; R v North West Lancashire Health Authority, ex parte A [2000] 1 WLR 977; R (Rogers) v Swindon PCT [2006] EWCA Civ 392.)
  • Generally, it is for funders to decide how they will allocate their resources.
  • It is almost impossible to challenge a decision to refuse funding where that decision took into account financial constraints and the particular circumstances of the individual patient.
  • Where, however, life and death is in issue, the courts will submit the decision making process to rigorous scrutiny.

With regard to decisions about exceptions, some other things were also clear.

  • Funders may have a policy only to fund treatments in exceptional circumstances.
  • Any such policy must, however, genuinely recognise that there might be an overriding clinical need, and require each funding request to be considered on its own merits.
  • Both the policy and the decision-maker must be able to envisage what exceptional circumstances might be. If they do not, the policy will be unlawful: although it has been justified as one of exception, it will in fact operate as a complete refusal of funding.

This case

The new case is R (Ross) v West Sussex PCT (High Court, 10 September 2008). The claimant, Colin Ross, suffers from multiple myeloma and his clinicians want to treat him with a comparatively new drug, Lenalidomide. Other drugs have given him peripheral neuropathy and the court was told that if Mr Ross cannot be treated with Lenalidomide, palliative treatment will be his only option. When West Sussex PCT refused funding, the matter went before a review panel and then an appeal panel. There was evidence that the two panels had misunderstood the effectiveness of Lenalidomide and wrongly calculated its value-for-money, but it was the PCT’s exceptions policy that was at the heart of the case.

Taking exception

The policy began with a dictionary definition of ‘exceptional’, which, it said, means “a person or thing or case to which the general rule is not applicable”. It went on to say that for his circumstances to be exceptional, and for funding to be awarded to him: [a] there must be something about a patient to make him “significantly different to the general population of patients with the condition in question”; and [b] this requirement would not be satisfied where in truth, the patient was merely representative of a wider group. The court said these conditions had led the two panels into error.

The panels had taken the view that the neuropathic side effects from which Mr Ross suffered were well recognised and did not make him exceptional; rather, he was merely one member of a broader class of patients. But the court said this decision demonstrated that the policy was unlawful.

Despite its claim, this was not a policy for exceptional cases, because a person was automatically disqualified if he could be likened to another: in order to gain funding, a patient would have to show, not merely that he was exceptional, but that he was unique.

This was an impossible task, not least because it would always be possible for another patient to emerge who was comparable. It was no coincidence, the court felt, that West Sussex PCT had not approved a single application for funding of Lenalidomide.

The panels had failed to appreciate that even if his neuropathic side-effects did not make Mr Ross exceptional, the implications of those side-effects might: they had robbed him of the only other treatment that might have saved or extended his life.


A decision to refuse funding for medical treatment will not be unlawful simply because its implications could be grave. But those implications will entitle a court to look more closely at the decision than it might otherwise have been prepared to do. Clearly, the NHS cannot be expected to fund every treatment that science devises, and in deciding where to draw the line, it may have regard to its own resources and look for exceptional circumstances. In explaining what those circumstances might be, however, funders will have to make sure that their policies are not so specific as to exclude from treatment everyone who would benefit from it.

Thursday, 18 September 2008

No need for the need for a father?


Fertility services licensed under the Human Fertilisation and Embryology Act 1990 (HFEA) must tread carefully. When, for example, they decide whether treatment may be provided to a patient, they must take account of the welfare of any child that might be born as a result and, in particular, consider “the need of that child for a father”. (HFEA, section 13(5))

The Government wishes to introduce a new version of the HFEA and has proposed, amongst other things, that services be required to take account not of the need for a father, but simply of the need “for supportive parenting”. (Human Fertilisation and Embryology Bill, clause 14(2)(b))

It is believed that one effect of this change would be to establish that women may not be refused fertility treatment solely because they are single or in a same-sex relationship. Parliament itself has said that the ‘need for a father’ requirement “was clearly intended to restrict the provision of IVF to lesbian and single women.” (House of Commons Science and Technology Committee, 2005, Human Reproductive Technologies and the Law, HC 7-I, paragraph 99) (There is, however, evidence that it has not had that effect. See: ibid, paragraph 100.)

But for some women, it is already unlawful to exclude them from fertility treatment (and many other health care services). The belief that it might still be lawful to deny such treatment to a woman solely because she is in a same-sex relationship fails to take account of The Equality Act (Sexual Orientation) Regulations 2007. (SI 2007 No 1263)

As their title suggests, these regulations were made under the Equality Act 2006, and they came into force on 30 April 2007. Amongst other things, they deal with ‘discrimination’, which might be direct - using someone’s sexual orientation as a reason for treating her less favourably than others (regulation 3(1)); or indirect - applying to her a condition that would not be applied to others (regulation 3(3)).

Although one of the regulations prohibits such discrimination in the provision of goods, facilities and services (regulation 4), it does not apply to public bodies (regulation 4(3)(a)) and will not, therefore, cover a NHS clinic or a PCT. Another regulation, however, does extend that far.

Regulation 8 of the Sexual Orientation Regulations is very clear. It says, “It is unlawful for a public authority exercising a function [of a public nature] to do any act which constitutes discrimination.” (Regulation 8(1) & (2)(b)) (It might be that an act will not be required, and that even a policy that excluded lesbians from treatment would be unlawful. See: regulation 9.)

It is likely, therefore, that in the case of a woman in a same-sex relationship, a NHS body that refused her treatment on that ground alone would breach the Sexual Orientation Regulations. Given that not just direct, but also indirect discrimination is unlawful, such might even be the case if, before a final decision were made, a clinic or PCT applied the ‘need for a father test’ (or simply had a policy of doing so).

Single women might still have something to gain from the change the Government proposes to make. As far as lesbians are concerned, however, their liberties have already been secured: there is no longer any place for the need for a father.

Update: subsequent events suggest the argument set above has some merit. See here. (Update added 1 March 2009.)

The Deprivation of Liberty Safeguards might not have helped the original Bournewood patient

Deprived of liberty? Detained?

Every local authority, and every PCT too, will soon have new responsibilities for incapable people. But there are real questions about how far those responsibilities extend and just whom they cover.

The Deprivation of Liberty Safeguards (DoLS) will come into force in April 2009. They will be found in Schedule A1 to the Mental Capacity Act 2005 (which was inserted by the Mental Health Act 2007).

The DoLS are the Government’s response to the Bournewood case, in which, in October 2004, the European Court of Human Rights (ECtHR) held that it would breach the ECHR for the common law doctrine of necessity to be used to deprive an incapable person of his liberty. (HL v United Kingdom, Application no 45508/99, Decision of 5 October 2004) The court said the common law was too vague and had too few safeguards to comply with Articles 5(1) and (4). For years, it was common law necessity that provided the legal basis for admitting incapable people to hospital and confining them there. Following Bournewood, therefore, a new framework had to be found to replace it. That is the purpose of the DoLS.

New safeguards
The Mental Capacity Act 2005 came fully into force on 1 October 2007. It provides a statutory basis for the care and treatment given to incapable people. At the moment, it may not be used to deprive such people of liberty (MCA, s 6(5)), but the DoLS will change that.

The DoLS will apply to an incapable patient accommodated in a hospital or care home if he is “detained [there] […] in circumstances which amount to deprivation of liberty”. (MCA, Schedule A1, paragraphs 1(2) & 15) Typically, they will cover patients with siginificant learning disabilities or older people who have dementia. In the case of any such patient, it will be up to the relevant local authority or PCT – as a newly-minted ‘Supervisory body’ under the DoLS – to decide whether he should continue to be so detained. This onerous responsibility might be made more so by confusion in the wording of the safeguards themselves.

It seems clear that in order for the DoLS to cover his case, an incapable person will have to be both deprived of liberty and detained. Regrettably, there is no official explanation for this distinction: the Code of Practice to the DoLS, for example, doesn’t even mention it. (Ministry of Justice, 2008, Mental Capacity Act 2005: Deprivation of Liberty Safeguards – Code of Practice to supplement the Main Mental Capacity Act 2005 Code of Practice). The case law, however, is somewhat clearer.

Detention or deprivation of liberty
At first, the Bournewood case involved a patient, Mr L, an application for judicial review of his detention and a writ of habeas corpus, and a claim for damages for false imprisonment. It was accepted that what must first be decided was whether he had been detained. (R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] 1 All ER 634)

What the common law knows as detention is not the same as what the ECHR knows as deprivation of liberty. The ECtHR reached this conclusion when it considered the Bournewood case, and, from a domestic perspective, it has been enunciated most recently in the Court of Appeal decision concerning the Oxford Circus demonstrators. (Austin and Saxby v Metropolitan Police Commissioner [2007] EWCA Civ 989) In the latter case, the trial judge found “that it is possible for there to be a deprivation of liberty without false imprisonment and vice versa.” (Ibid, per Sir Anthony Clarke, MR at [88])

This must be so, for in Bournewood, the ECtHR felt able to find that Mr L had been deprived of his liberty even though the House of Lords had ruled that he was not detained. (R v Bournewood Community and Mental Health NHS Trust, ex parte L (1998) 3 All ER 289) In Austin and Saxby, meanwile, the Court of Appeal held that although the claimants were not deprived of their liberty in the Article 5 sense, they were imprisoned (even if not falsely). (Ibid, at [105] and [12]) But this essential difference might prove harmful to the DoLS.

If detention is not the same as deprivation of liberty, and if one might exist without the other, it is conceivable that an incapable patient would be found to be labouring under the former but not the latter, and that he would therefore fall outside the DoLS, even though he fell firmly within the Strasbourg judgment in Bournewood.

Consider Mr L himself. We know, because the ECtHR told us, that he was deprived of liberty. But of the nine domestic judges that considered the case, only a bare majority felt he had been detained; and their Lordships, of course, went the other way. So, is it possible that the new Bournewood safeguards wouldn’t even have applied to the original Bournewood patient?

There is a already a duty to respond to the coroner

HM Assistant Deputy Coroner for Inner West London

As yet, we don’t have a new Coroners Act. What we do have is the promise of a Bill and some idea of what it might contain. (Ministry of Justice, 2008a, Coroners Bill – Changes made resulting from consultation) Amongst other things, there will a duty to respond to a coroner’s concerns. In the meantime, the existing rules have been strengthened to much the same effect.

Eventual powers
According to the document in which the Government makes its promise, a coroner who believes that action should be taken to prevent the recurrence of fatalities similar to one he or she has investigated will be able to report the matter to anyone with the power to take such action. (Ministry of Justice, 2008a, op cit, page 3) This reflects proposals in the draft Coroners Bill and support from within Parliament itself. (Secretary of State for Constitutional Affairs, 2006, Draft Coroners Bill, Cm 6849, clause 12(2); House of Commons Constitutional Affairs Committee, 2006, Reform of the coroners’ system and death certification, Eighth Report of Session 2005-06, HC 902, paragraphs 201-211)

Although this resembles rule 43 of the Coroners Rules 1984, it differs from that provision because it would [1] both allow a coroner to report the matter to the new Chief Coroner and compel any organisation that received such a report to respond; and [2] enable the Chief Coroner to monitor reports and responses, and to summarise them in his or her annual report to the Lord Chancellor. (Ministry of Justice, 2008a, op cit, page 3) In fact, the difference is not as great as it might have been. That is because rule 43 has recently been amended, so that reports may be sent, and responses required, even before any new Act comes into force.

Interim powers

The amendments, which were made by The Coroners (Amendment) Rules 2008, came into effect on 17 July 2008. (SI 2008 No 1652)

Making a report
Where, on the basis of evidence heard at an inquest, he or she believes action should be taken, the amendment allows a coroner to make a report to prevent not just similar fatalities, but “other deaths”. (Rule 43(1)(b)) This represents a significant change, because, we are told, it “will allow the coroner to report issues that may be peripheral to the current case but nevertheless prevent death(s) in the future.” (Ministry of Justice, 2008b, Guidance for coroners on changes to Rule 43: Coroner reports to prevent future deaths, paragraphs 2.1 & 2.2) This change should not, however, lengthen inquests or broaden their scope. (Ibid, paragraph 2.4)

The amended rule and the guidance upon it each say, somewhat confusingly, both that a coroner who intends to make a rule 43 report must announce that intention before the end of the inquest and that a failure to do so will not prevent such a report being made. (Rule 43(3); Ministry of Justice, 2008b, op cit, paragraph 2.5) One wonders what the word ‘must’ is intended to mean here.

The content of a report
The amended rule does not say what information must be included in any new-style report, for this will be in the discretion of the coroner and depend upon the circumstances of each case. Coroners should, however, tell those to whom they send a report that a response must be provided within 56 days, and that it might be released and published. (Ministry of Justice, 2008b, op cit, paragraph 2.7)

Sharing a report
Subject to any representations (as to which see below), a rule 43 report must be copied to anyone whom the coroner has recognised as a properly interested person and to the Lord Chancellor, and may be sent to “any person who the coroner believes may find it useful or of interest”. (Rule 43(4)) This last is a very wide provision. It may include “regulatory bodies or organisations with an interest in the subject mater of the report”. (Ministry of Justice, 2008b, op cit, paragraph 3.4)

Having received a rule 43 report, the Lord Chancellor may publish it and/or copy it “to any person [whom he] believes may find it useful or of interest” (provided that person hasn’t already received the report from the coroner). (Rule 43(5)(b)) The Lord Chancellor has been given this power so that “issues which were subject to reports in one coroner district which may have relevance to other coroner districts [may be] identified and disseminated nationally”. This should, in turn, allow “emerging trends to be identified and lessons that could be applied at a national level to be highlighted.” (Ministry of Justice, 2008b, op cit, paragraphs 1.3-1.7)

Responding to a report
No one that receives a rule 43 report is obliged to act upon it. They will, however, have to respond to it, and ordinarily, to do so within 56 days. The response must set out any action that has been taken or proposed, and if there is no such action, it must explain why. (Rule 43A(1))

A coroner may extend the 56-day period for a response, either before or after it has expired (Rule 43B) and for whatever further period he or she considers appropriate. The guidance says that an extension might be appropriate where, for example, the report: [1] “is sent to the incorrect person or division in an organisation, especially a large organisation[,] and is not promptly received”; or [2] “requires significant policy work to be undertaken before a response may be sent”. (Ministry of Justice, 2008b, op cit, paragraph 4.6)

Although the amendment does not impose a sanction, any failure to respond to a rule 43 letter should be followed up by the coroner, and “Where a response remains outstanding after reasonable attempts, then the coroner may inform the Lord Chancellor.” If there is a continuing failure to respond, the latter may mention it in any document he publishes about rule 43 reports. (Ibid, paragraph 4.8)

Making representations
An organisation that does not wish its rule 43 response to be shared with others may make representations to the coroner in that regard. This might be because: [1] “the response contains confidential or classified information”; [2] “the release of the response might have a prejudicial effect on ongoing or upcoming legal proceedings”; or [3] “regulatory enforcement action is being carried out under confidentiality rules.” (Ibid, paragraph 5.7)

Any representations must be in writing, (Rule 43A(4)) and it will be up to the coroner to decide whether to accept them and, if so, how to respond. (Ministry of Justice, 2008b, op cit, paragraph 5.6)

Even if he or she accedes to any representations, a coroner must still prepare a summary of the response for release and publication. (Rule 43A(6) & (7)) It is this summary that will be copied to interested parties and might be shared with others. Although the Lord Chancellor may not overrule a coroner’s decision in this regard, he must be sent not only the summary, but also the original rule 43 report. (Ministry of Justice, 2008b, op cit, paragraphs 5.9 & 5.10) He may only, however, publish the summary. (Rule 43A(3)(a) & (7); Ministry of Justice, 2008b, op cit, paragraph 6.2)

Although, in an appropriate case, the coroner must be told what is to be done to prevent further deaths, he cannot require a particular course of action to be taken. Rule 43 has certainly been strengthened, but the obligations it imposes need not be difficult to meet.

Monday, 1 September 2008

Will the High Court help safeguard vulnerable adults?

Although the Mental Capacity Act 2005 (MCA) can be used to protect people who are vulnerable because they lack capacity to make a decision, it offers no protection to people who, though undoubtedly vulnerable, still retain their capacity. Such people will not find themselves within the embrace of the new Court of Protection, but a recent case suggests that the High Court might now be willing to step into the breach.

The relatively revent case of The City of Sunderland v PS & CA [2007] EWHC (Fam) 623 concerned an 82-year-old woman and whether the ‘inherent jurisdiction’ of the High Court could be used to move her into residential care against her daughter’s wishes. The inherent jurisdiction has long been used by the High Court to (as it sees it) protect incapable people from harm. It is what has enabled the court to declare that it would be lawful for an incapable person to undergo a medical procedure or be prevented from seeing a relative. (See, for example: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; Re MB (Medical Treatment) [1997] 2 FLR 426; In re F (Adult: Court’s Jurisdiction) [2000] 1 Fam 38.)

The PS case came before the Honourable Mr Justice Munby, who has considerable experience of cases involving incapable people. For present purposes, there were three significant aspects of his judgment. First, Munby J confirmed the inherent jurisdiction of the High Court. Quoting from one of his own earlier judgments, he said: “It is now clear … that the [High] Court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established … jurisdictions in relation to children. The court exercises a ‘protective jurisdiction’ in relation to vulnerable adults just as it does in relation to wards of court. [The] court can regulate everything that conduces to the incompetent adult’s welfare and happiness” (at [13]; emphasis added). (See, for example: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Here, the terms ‘incompetent adult’ and ‘vulnerable adult’ seem to be used to connote the same thing.

Secondly, Munby J said: “Consistently with this view of the jurisdiction … there is no doubt that the [High] Court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the vulnerable adult’s welfare and interests” (at [13]; emphasis added). Thirdly, Munby J said that the inherent jurisdiction would even permit the court to order a person’s detention. It is, however, the range of people he thought might be subject to such an order that is of most interest for present purposes. He said: “It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has the power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit” (at [16]; emphasis added).

These extracts from the judgment of Munby J are slightly odd, because he also cited several passages that say no more than that the inherent jurisdiction is available in the case of incapable people. For example, he cited his own judgment as follows: “It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests … The particular form of order will, naturally, depend upon the particular circumstances of the case” (at [13]; emphasis added). (See: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Munby J also cited Dame Elizabeth Butler-Sloss, who had said of the inherent jurisdiction: “It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability … Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue … to use the common law as the great safety net to fill gaps where it is clearly necessary to do so” (at [14]; emphasis added). (See: Re Local Authority (Inquiry: Restraint on Publication) [2003] EWHC (Fam) 2746.)

It is not clear precisely what Munby J means by a ‘vulnerable’ person. What the Government means by that term is, however, clear. In its No Secrets guidance, it envisages a person who is or may be, inter alia: [1] in need of community care services by reason of mental or other disability, age or illness; and [2] unable to take care of himself or herself, or unable to protect himself or herself against significant harm or serious exploitation. (Home Office and Department of Health, 2000, No secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse, paragraph 2.3.) In fact, this test was imported from the Government’s 1997 Green Paper, and, even more remotely, from the Law Commission’s own report on mental incapacity. (Lord Chancellor’s Department, 1997, Who Decides? Making decisions on behalf of mentally incapacitated adults, Cm 3803, paragraph 8.7; Law Commission, 1995, Report on Mental Incapacity, Law Com no 231, paragraph 9.6.)

We don't know whether Munby J’s definition is the same as the one in No Secrets. It seems abundantly clear, however, that he does not regard vulnerability as the same as incapacity, and therefore: [1] that vulnerable people will not fall within MCA 2005 just because they are vulnerable; but [2] that vulnerable people will enjoy the protection of the High Court via the inherent jurisdiction, even though, in the case of incapable people, that protection now falls to be provided under MCA 2005 and exclusively by the Court of Protection.

This state-of-affairs might, however, be somewhat problematic. The Law Commission took pains to stress that measures that might be used to safeguard incapable people should only be used with consent in the case of vulnerable people that retained capacity. (Law Commission, 1995, op cit, para 9.12.)

The possibility that the High Court might offer a remedy to vulnerable people who remain capable – and, indeed, that the Mental Capacity Act might be used to protect those who are both vulnerable and incapable – is considered in more detail in a chapter I have written for a new book. That book, entitled Good Practice in the Law and Safeguarding Adults, is edited by Jacki Pritchard and published by Jessica Kingsley Publishers. It also covers such issues as adult protection practice and procedures; crime and vulnerable adults; financial abuse and the question of capacity; the role of CSCI; and confidentiality and information sharing. More information about the book may be found here.

Sunday, 31 August 2008

Is there a problem with ‘best interests’ proceedings?

Where a person lacks capacity to make a decision, the Mental Capacity Act 2005 (MCA) provides a framework within which that decision may be made on his behalf. That is so, whatever the nature of the decision: whether it concerns the medical treatment the person receives or the social care that is to be given to him; and the framework covers decisions made by anyone, from doctors, nurses and social workers to informal carers and family members. Any MCA decision must be in an incapable person’s ‘best interests’ and in some circumstances, it may be made by the Court of Protection. But is this arrangement lawful?

Two tasks
It is the legislature that decides what behaviour is to be discouraged and what promoted, and crucially, of what such behaviour shall consist. So, in criminal law, Parliament decided first, that theft should be an offence, and secondly, that it would be committed where one person dishonestly appropriated property belonging to another with intention of permanently depriving that other of it. (Theft Act 1968, section 1.) That the subsidiary task of determining the nature and precise bounds of the offence is a job for the legislature, not the judicature is self-evident. It would be absurd, for example, for a court to say, or to be able to say, “We are satisfied that the defendant dishonestly appropriated property belonging to another with the intention of permanently depriving that other of it, but we find him not guilty because there was not present in the case an element that we have decided, for the purposes of this case, must be present if the offence is to be held to have been committed.”

A similar situation may be encountered in other areas of law. So, for example: employment legislation establishes not only that unfair dismissal is unlawful and compensable in damages, but also what it means for dismissal to be unfair; the Mental Health Act sets out what it means to be suffering from mental disorder and then to require detention on that ground, so that, in criminal proceedings, an accused might be committed to psychiatric care; and in the case of a person who is disabled or chronically unwell, and receiving inadequate care, the National Assistance Act provides not only that steps may be taken in his case, but also, and precisely, what those steps are. In each case, the subsidiary task, quite as much as the primary task, is undertaken by the legislature and it would be absurd to suggest that it be imposed instead upon the judicature.

Compare this with the MCA regime, where, as I have said, the obligation of the court is to ensure that any decision for someone it has found to be incapable represents his best interests. (MCA, sections 4 & 16.) This might be thought to correspond to the duty of the criminal adjudicator to decide whether an accused has committed the offence of theft. Unlike the Crown Court or the magistrates’ court, however, the Court of Protection has no subsidiary guidance on which it may rely. Nowhere does the MCA say what ‘best interests’ means. Indeed, the possibility of anything so much as a comprehensive definition is explicitly denied.

The Code of Practice to the MCA says: “The term ‘best interests’ is not actually defined in the Act. This is because so many different types of decisions and actions are covered by the Act, and so many different people and circumstances are affected by it.” (Code, paragraph 5.5.) True, the Code sets out certain factors that must be considered before an incapable person’s best interests are determined. They include the person’s wishes and feelings, and his beliefs and values (MCA, section 4(6)); and the views of anyone named by him to be consulted, or engaged in caring for him or interested in his welfare (ibid, section 4(7)). But these are only some of the things with which a decision-maker will have to concern herself. The MCA says anyone making a decision for a person who lacks the capacity to do so for himself “must consider all the relevant circumstances” (ibid, section 4(2)), and the Code warns, “This checklist is only the starting point: in many cases extra factors will need to be considered.” (Code, paragraph 5.6).

Furthermore, neither the Act nor the Code explains how the various factors should be weighed or how, if one of them appears to conflict with another, that conflict is to be resolved. (What is to be done, for example, where an incapable person’s daughter has views about his care that contradict those of the person’s son?) This lacuna, which seems to have been created deliberately, is unhelpful. It is also curious, for, when considering decisions made on behalf of public bodies, the courts have said that any discretion should be matched with clear guidance as to how it might be exercised. (See, for example, R (Rogers) v Swindon NHS PCT [2006] EWCA Civ 392.)

It might be argued, by analogy with a criminal case, that in best interests proceedings, the court is not, in fact, producing a subsidiary definition for its own use, but that, having found a precedent fact (guilt or, here, that the subject of the proceedings is incapable of making the decision to which those proceedings relate), it has now moved on to consider disposal. Such an argument would diminish my analysis not at all: in criminal proceedings, there is a wealth of guidance on the question of disposal.

A breach of the ECHR?
It is surely arguable that when it makes a decision in best interests proceedings, the Court of Protection does more than merely determine whether a case fulfils criteria for the utilisation of its powers; that it also – and first – determines what those criteria should be. This state-of-affairs is not unique to such proceedings, of course. It was part of the regime that preceded the Mental Capacity Act, according to which orders might be made in the ‘inherent jurisdiction’ of the High Court, and it might be argued still to obtain in proceedings under the Children Act. But this simply reinforces the need to ask a simple question: if the criteria that determine how a case is decided may – in fact must – be determined afresh for the purposes of that case, how can we say with any certainty what they will be? This is more than an inconvenience for lawyers, and for the health care and social care professionals they may represent.

The lack of certainty in our law was one reason the European Court of Human Rights found against the United Kingdom in the Bournewood case. (HL v United Kingdom, Application number 45508/99, Decision of 5 October 2004.) It said that the use of the common law to deprive an incapable person of liberty would breach Article 5 of the ECHR. The common law is, admittedly, more vague than statute law, but that does not mean that because it is a statute, the new Act necessarily passes muster. There is a danger than in trying to provide absolute flexibility in the care of incapable people, the Mental Capacity Act and its somewhat mutable conception of best interests will prove no less certain and, therefore, no more consistent with the requirements of the ECHR.

Wednesday, 13 August 2008

Who pays the boatman

Book Collector, from the Narrenschiff by Sebastian Brant (1494)

When someone is to receive health care or social care, it is important to know how that care is going to be funded. In the past, the question could be a difficult one to answer, and delay – and occasionally litigation – was often the result. This was especially so in the case of mental health patients (see, for example: R v Mental Health Review Tribunal, ex parte Hall [1999] 3 All ER 132.) As ever, Michel Foucault has shed an interesting light on the question.

The responsible commissioner
Where care is concerned, funding responsibilities are set out in secondary legislation (see: National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002, regs 3(7)-(10)). And now, there is even detailed official guidance (see: Department of Health, 2007, Who Pays? Establishing the responsible commissioner). Amongst other things, the guidance attempts to ensure that a patient who is discharged from detention under the Mental Health Act can gain access to the after-care services he or she needs (see: ibid, paras 84-87). Rival commissioners – usually, Primary Care Trusts – should not compete to rid themselves of responsibility for funding the patient’s care. Whether or not the problem will be solved by the guidance, it is clearly one of great vintage.

The ship of fools
In his magisterial work, Madness and Civilization (1961, Librairie Plon), Michel Foucault writes at length about the stultifera navis or ‘ship of fools’ (ibid, chapter 1). This was typical of an allegorical device, used particularly in literature and painting, which depicted an often pilot-less boat, whose passengers, oblivious and ignorant, symbolised human weakness and vice. For Foucault, such boats came increasingly to represent the fear of unreason. Foucault argued that the origin of the ship of fools might be found in the Argonaut cycle or even the myth of Tristan and Iseult. In fact, the idea might even derive from Book VI of Plato's Republic.

Renaissance Europe exhibited a particular fondness for allegorical ships. There were, for example, Jacob van Oestvoren’s Blauwe Schute of 1413; the Stultiferae naviculae scaphae fatuarum mulierum published by Josse Bade in 1498; and the Ship of Princes and Battles of Nobility and the Ship of Virtuous Ladies, both of which were created by Symphorien Champier in 1502-03. But the ship of fools stood apart from the rest, because it was more than merely allegorical; Foucault, somewhat controversially, asserts that it actually did exist. He notes, “Often the cities of Europe must have seen these ‘ships of fools’ approaching their harbours.”

The ship of fools was the creation of Sebastian Brant (1457-1521), an Alsatian theologian and lawyer, who, at Basel in 1494, published the Narrenschiff, a monumental satire on humankind and its condition. Brant’s work was, and remains, hugely popular. It is likely, for example, to have influenced Heironymous Bosch’s own famous painting, The Ship of Fools, which dates from circa 1500. Brant’s ship was populated, in particular, by the deranged, who, Foucault says, were often “entrusted to mariners because folly, water, and sea, as everyone then ‘knew’, had an affinity for each other.” Such vessels “criss-crossed the sea and canals of Europe with their comic and pathetic cargo of souls.”

The reasons for this great exodus are numerous and complex, but, as Foucault explains: “The towns drove [madmen] outside their limits […] The custom was especially frequent in Germany; in Nuremberg, in the first half of the fifteenth century, the presence of 63 madmen had been registered; 31 were driven away; in the fifty years that followed, there are records of 21 more obligatory departures; and these are only the madmen arrested by the municipal authorities. Frequently they were handed over to boatmen: in Frankfort, in 1399, seamen were instructed to rid the city of a madman who walked about the streets naked; in the first years of the fifteenth century, a criminal madman was expelled in the same manner from Mainz.”

For Foucault, all this had a symbolic, almost a purifying, function. But it also had a very practical effect: “We may suppose that in certain important cities – centers of travel and markets – madmen had been brought in considerable numbers by merchants and mariners and ‘lost’ there, thus ridding their native cities of their presence.” The ship of fools was, Foucault tells us, “a general means of extradition by which municipalities sent wandering madmen out of their own jurisdiction”, for “to hand a madman over to sailors was to be permanently sure he would not be prowling beneath the city walls; it made sure that he would go far away.”

The reports of the Health Ombudsman contain no mention of barges full of mental health patients cast adrift on the unforgiving waters of the Manchester Ship Canal. But that shouldn’t blind us to the truth. Isn’t the problem to which the ship of fools was apparently the solution one for our age too? Isn’t it because too many cities tried to ensure that ‘madmen’ were no longer prowling beneath their walls that, more than half-a-millennium later, we needed the responsible commissioner guidelines?

Tuesday, 5 August 2008

Two falls, a submission or a narrative verdict

The response to his verdict was a little more robust than the coroner had expected

It’s hard to know what a coroner is supposed to do. The obligations of the role might be set down in black and white, but changing times and expectations seem to stretch them wider and wider. One thing, however, is abundantly clear: if we are to believe Roland Barthes, inquests have a great deal in common with wrestling-matches.

The law
In section 11(5), the Coroners Act 1988 says an inquest should determine who the deceased was, and where, when and how he came by his death. After Middleton, we know that in order to satisfy the Human Rights Act 1998, the how question must be interpreted widely, and that an inquest should ask “by what means and in what circumstances” the deceased died. Although the courts continue to worry away at this question, there is one thing we can be clear about: under rule 42 of the Coroners Rules, no verdict may be framed in such a way as to appear to determine any question of civil or criminal liability. The coroner cannot, in other words, attribute blame. That is a significant prohibition, not only for those involved, but also for how, taking several steps back, we might choose to think of the inquest process.

A spectacle of excess
Whatever the French thinker Roland Barthes knew about coroners and their inquests, he certainly knew his wrestling, and he wrote about it an essay that subsequently appeared in his celebrated work, Mythologies (1957, Paris, Editions du Seuil). For Barthes, wrestling was “a spectacle of excess” and had “a grandiloquence which must have been that of ancient theatres.” Large parts of his analysis seem to apply equally to inquests.

Not a narrative
The first similarity between an inquest and a wrestling match lies in their conclusion, which is never the culmination of the contest that preceded it. That much, in an inquest, is guaranteed by the Rule 42 prohibition. The public “abandons itself to the primary virtue of the spectacle, which is to abolish all motives and all consequences.” Here, of course, Barthes is talking about wrestling. It is “a sum of spectacles, of which no single one is a function: each moment imposes the total knowledge of a passion which rises erect and alone, without ever extending to the crowning moment of a result.”

This means that the contest cannot be understood as a narrative. On the contrary, “it is each moment which is intelligible, not the passage of time. The spectator is not interested in the rise and fall of fortunes; he expects the transient image of certain passions. Wrestling therefore demands an immediate reading of the juxtaposed meanings, so that there is no need to connect them. The logical conclusion of the contest does not interest the wrestling-fan”. This absolute focus, which wrestling might be thought to share with the inquest, on the here-and-now has several consequences for each.

No gouging
The first consequence is that “it is the pattern of Justice which matters here, much more than its content”. The contest, Barthes says, “is above all a quantitative sequence of compensations (an eye for an eye, a tooth for a tooth).” We might argue, therefore, that although – or perhaps because – the inquest cannot conclude in the attributing of blame, it is often used to embarrass those seen, rightly or not, as culpable in the death, whether they be doctors, nurses, social workers, police officers or the Ministry of Defence. Barthes seems to anticipate this argument: “The idea of ‘paying’ is essential to wrestling, and the crowd’s ‘Give it to him’ means above all else ‘Make him pay’. This is therefore, needless to say, an immanent justice. The baser the action of the ‘bastard’, the more delighted the public is by the blow which he justly receives in return.”

In the red corner
The second consequence of the “sum of spectacles” is that everyone has – and understands – his or her allotted role. The function of the wrestler, for example, is not to win, “it is to go exactly through the motions which are expected of him”, and he will do this by means of “excessive gestures, exploited to the limit of their meaning.” In an inquest, of course, the wrestler-equivalent need not be the coroner himself; it could as easily be a lawyer or a bereaved relative.

The family of the deceased, in fact, has a very particular role at an inquest, even if it extends no further than reading a prepared statement or holding up a framed photograph to the television cameras on the steps of some anonymous municipal building. In its lachrymosity, the family always seems to understand that whatever the conclusion, it must at least appear to have lost. For Barthes: “The gesture of the vanquished wrestler signifying to the world a defeat which, far from disguising, he emphasizes and holds like a pause in music, corresponds to the mask of antiquity meant to signify the tragic mode of the spectacle. In wrestling, as on the stage in antiquity, one is not ashamed of one's suffering, one knows how to cry, one has a liking for tears.” What is it that we expect of bereaved mothers and brothers and husbands and sisters if not to take their grief – pace Barthes, their defeat – and hold it “like a pause in music”?

A light without shadow
The inquest process permits little ambiguity. “We are therefore dealing”, Barthes writes, “with a real Human Comedy, where the most socially-inspired nuances of passion (conceit, rightfulness, refined cruelty, a sense of ‘paying one’s debts’) always felicitously find the clearest sign which can receive them, express them and triumphantly carry them to the confines of the hall.” But even if the result it yields is of no interest, this process does have real, significant consequences: “It is obvious that at such a pitch, it no longer matters whether the passion is genuine or not. What the public wants is the image of passion, not passion itself [...] what is expected is the intelligible representation of moral situations which are usually private.”

At first sight, this imperative might seem to be at odds with the role of the coroner, for even if we don’t know quite what he is supposed to do, we at least know how he is supposed to do it; and that is rigorously. In several cases, not least Dallaglio, the courts have said that a coroner should conduct a “full, fair and fearless investigation”, and that his inquest should ensure “the exposure of relevant facts to public scrutiny”. But this too finds an echo in Barthes. He writes (having witnessed, it would seem, if not the workings of the coronial system, at least the places in which they are accomplished): “hidden in the most squalid Parisian halls, wrestling partakes of the nature of the great solar spectacles, Greek drama and bull-fights: in both, a light without shadow generates an emotion without reserve.”

If, however, we imagine that what this remorseless light illuminates is the truth, we are mistaken: “nothing exists except in the absolute, there is no symbol, no allusion, everything is presented exhaustively. Leaving nothing in the shade, each action discards all parasitic meanings and ceremonially offers to the public a pure and full signification, rounded like Nature. This grandiloquence is nothing but the popular and age-old image of the perfect intelligibility of reality. What is portrayed by wrestling is therefore an ideal understanding of things; it is the euphoria of men raised for a while above the constitutive ambiguity of everyday situations and placed before the panoramic view of univocal Nature, in which signs at last correspond to causes, without obstacle, without evasion, without contradiction.” As of wrestling, so, perhaps, of the inquest: there is more to a death, Barthes might be saying, than can be uncovered by the coroner, even by means of a narrative verdict.

Another book you might find useful

The Nearest Relative Handbook
The role of nearest relative is complex and often misunderstood. This handbook offers an expert legal analysis of the role, the powers it carries and the limits of those powers. When a person is subject to the Mental Health Act 1983, many of his or her principal rights are taken away. It is the function of the nearest relative to compensate for that loss. This very accessible book explains how the nearest relative is identified and what the role can involve, and it contains a wealth of case examples and illustrative scenarios. The book provides a succinct discussion of each significant case, and it incorporates all the very latest changes to the Mental Health Act and looks at areas where further changes might be made. The Nearest Relative Handbook is the first full-length reference work to tackle this subject systematically and comprehensively. It will be an invaluable aid to those who find themselves in a professional relationship with a nearest relative, to those who are or wish to be a nearest relative, and to anyone needing to make sense of the relevant statutory provisions. This book is published by Jessica Kingsley Publishers. If you would like more information about the book, or if you would like to order a copy, please go here or contact me at


“An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject.” Phil Fennell.

“Hewitt looks first at the development of the role of nearest relative, where it is now, the problems it presents and how these are likely to be resolved … The rules are comprehensively worked through and the examples clear.” Tony Eaton, International Psychogeriatrics.

“This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area.” Robert Brown, Journal of Mental Health Law.

“There can hardly be a professional concerned with the Mental Health Act and its practical application who will not benefit from having this book to hand.” B Mahendra, New Law Journal.

Announcing … a new book

A Tendency to Laugh and Sing is also the title of my new book, which will shortly be published by the Northumbria Law Press. The book, whose sub-title is Some Notes on Mental Health Law, will collect together many of the articles and papers I have published, and one or two of the lectures I have given, over the last few years. In thematic chapters, and with a plethora of original and new notes, it will cover such things as the effect of the European Convention on Human Rights and reform of the Mental Health Act. It will range over a wide legal landscape, from the basis for seclusion to the true meaning of the word ‘hospital’, and from Bournewood to the ‘long leash’. In doing so, the book will address the most significant controversies in mental health law of the last few years. A Tendency to Laugh and Sing will be of assistance to anyone who is subject to or works with the Mental Health Act, and to those with an interest in social policy and the process by which it is applied or reformed. If you would like more information about the book, or even to pre-order a copy, please contact me at

Why the title?

I really should explain why this blog is called what it is. The best way I can do that is by quoting from an article I published a good few years ago. In that article, I wrote: "There are some classes of people of whose rights, it sometimes seems, all laws have been contemptuous. The records of the Greenlee County Probate Court make salutary reading. On January 22, 1912, at Morenci, Arizona, a deputy-sheriff arrested a 19 year-old Mexican-American woman. She was examined by experts who pronounced her ‘cleanly’ in her habits and found no evidence of mental illness. She had neither attempted nor threatened suicide and, [the experts] wrote, ‘is of a very happy temperament; has a tendency to laugh and sing’. Though they thought that her problems were only temporary, they noted that ‘she wanted to dance’, and concluded: ‘the accused is insane, and it is dangerous to the accused and to the person and property of others by reason of such insanity that the accused go at large’. The unfortunate young woman was committed to the ‘Territorial Asylum for the Insane, at Phoenix, until sufficiently restored to reason, or otherwise discharged according to law’. The papers of the Greenlee County Probate Court also contain an order permitting the same woman’s funds to be used to maintain her in her involuntary confinement. It is dated May 26, 1969. The woman had wanted to dance and was still locked up 57 years later." The article was published in Litigation of March 1992. (See also: David B Wexler, Mental Health Law: Major Issues, 1981, Plenum Press, New York.) This blog shares its title with a new book of mine, as to which …

This blog

As its description suggests, this blog will be about law, society and some things in between. In fact, its main focus will be on mental health and mental capacity law, and on other facets of the law that impact upon those who have mental disorder or lack capacity to make decisions. There will, of course, be discussion of the Mental Health Act and the Mental Capacity Act, but from time to time, the blog will also look at such subjects as inquests, ASBOs and the sharing of confidential information. This won’t however, be the place for a systematic analysis of those subjects. There will be no sub-paragraph by sub-paragraph dissection of the latest statute or regulations. That sort of thing can be found elsewhere. Any postings on this blog will be occasional and erratic, and they will often take an oblique, not to say idiosyncratic approach to their subject.