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.