Wednesday, 8 April 2009

We are all bankers now

Before long, significant changes will have been made to the law that covers children and many incapable or vulnerable adults. It is still unclear, however, what those changes will mean.

Yet the law must always be clear. The European Court of Human Rights (ECtHR) said as much in 2004: “An important ingredient of lawfulness is that all law must be sufficiently precise to allow the citizen – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail.” (HL v United Kingdom) In fact, this principle goes back much further; at least to Sunday Times v United Kingdom in 1979 and possibly to the ancient Chinese Fa legalism of the eighth to third centuries BCE.

Hello DoLS

The HL case was about the common law doctrine of necessity and whether it was sufficiently clear to permit incapable people to be deprived of liberty in their own best interests. The ECtHR said it was not and that as a result, it breached Article 5(1) of the ECHR.

The Government’s response was to introduce the Deprivation of Liberty Safeguards (DoLS), which will apply wherever an incapable person is in a NHS hospital or premises registered under the Care Standards Act. For such a person to be deprived of liberty, permission will have to be obtained, either from a PCT or a local authority. If the Court of Protection is to be involved in the case, it will be subsequently, as an appellate court.

One problem with the DoLS is that even now, some time after they came into effect, no one really knows what it means to be deprived of liberty. And it seems that the best guidance is as likely to be found in anti-terrorism cases as in those decided under health care law. (See: David Hewitt, New perspectives on the Mental Health Act, Solicitors Journal, 18 November 2008) Practitioners – and patients – surely deserve better than that.

Another problem is the attitude of the House of Lords, which recently held that in deciding whether something constitutes a deprivation of liberty, consideration may be given to the purpose it seeks to achieve. (Austin v Metropolitan Police Commissioner, 2009) Their Lordships drew on HM v Switzerland (2002), in which the ECtHR held that where an elderly woman was admitted to a nursing home, Article 5 of the ECHR would not be engaged, because this was a “responsible measure” taken in her own best interests and could not, therefore, amount to a deprivation of liberty. The decision in HM had long been considered a rogue one, and In HL, a differently-constituted ECtHR took pains to distinguish it. Now, however, its spectre has returned, and in a way that might haunt the DoLS. (See: David Hewitt, Whose liberty? Solicitors Journal, 13 February 2009)

Under the DoLS, a deprivation of liberty will only be permitted – and will only, therefore, be lawful – if it is in the best interests of the incapable person concerned. But Austin suggests that a measure will never be a deprivation of liberty where it has a benevolent purpose. If that were so, no patient who appeared to fall within the DoLS would ever be deprived of liberty, and as a result, permission would be unnecessary where the DoLS appeared to demand it most. No formal comment has been made about the effect of Austin, but the Department of Health has let it be known that as far as the DoLS are concerned, it is business as usual.

No secrets

There is a widespread view – even unanimity, perhaps – that we should strive to protect vulnerable people. The problem is that no one can seem to agree on what ‘vulnerable’ means. (See: David Hewitt, What is vulnerable? Solicitors Journal, 14 April 2009)

The word is used in the No secrets guidance, which was published in 2000 and is the centrepiece of the adult protection framework. The guidance is, however, being revised, and there is no guarantee that vulnerability will continue to have the resonance it does now. And the ‘No secrets’ definition is not the only one to hand: the Youth Justice and Criminal Evidence Act 1999, the Care Standards Act 2000 and the Safeguarding Vulnerable Groups Act 2006 all have to do with the vulnerable, but each of them defines the term differently.

The High Court, meanwhile has said that it too will offer a remedy to the vulnerable. (Re SA: vulnerable adult with capacity: marriage, 2006) The Court’s motive might be to create new work streams, given that it has lost much if not all of its jurisdiction over incapable people to the Court of Protection. Its conception of what it means to be vulnerable is certainly the broadest of them all.

Parental consent

Hitherto, someone with parental responsibility has been able to consent to medical treatment for a child, even where the child himself or herself is capable of giving consent, and even where he or she has refused to do so. Now, however, we are told that sometimes, it will not be sufficient to rely upon parental consent. (See: David Hewitt, Too young to decide, Solicitors Journal, 30 September 2008)

This notion is set out for the first time in the revised Code of Practice to the Mental Health Act 1983, where it is said to derive from Nielsen v Denmark (1989). The Code says: “It is difficult to have clear rules about what may fall in the zone, when so much depends on the particular facts of each case … The parameters of the zone will vary from one case to the next: they are determined not only by social norms, but also by the circumstances and dynamics of a specific parent and child or young person.” (Paragraphs 36.9 and 36.12) Furthermore, “Where there is doubt professionals should take legal advice so that account may be taken of the most recent case law.” (Paragraph 36.9)

According to the Code, the factors that should be taken into account include: the nature and invasiveness of the treatment; whether the child is resisting; any conflict between the child and the parent, or between the parents; any discrepancy between the child’s and the parents’ interests; and the mental capacity of one or other parent.

But another factor, which might itself render unreliable consent obtained from a parent, is “The general social standards in force at the time concerning the sorts of decisions it is acceptable for parents to make – anything that goes beyond the kind of decisions parents routinely make will be more suspect.” (Paragraph 36.12) And the Code reminds us that a decision might be beyond a parent to make simply because of the nature of the proposed treatment – for example, where it could be considered “particularly invasive or controversial” (Paragraph 36.14) But does this guidance clarify or simply obscure the position?

What, for example, are the general social standards in force at the time concerning the sorts of decisions it is acceptable for parents to make; and how should we go about identifying them? Are practitioners expected to take the Guardian and the Daily Mail, and to watch both Newsnight and Jeremy Kyle? And is a code of practice really the right place for such a far-reaching proclamation? If parental consent is no longer to be a sound basis for medical treatment given to a child, why doesn’t the Government say so explicitly, in legislation?

In cases of doubt, professionals are advised to take legal advice, “so that account may be taken of the most recent case law.” This is because the Government no longer regards the Nielsen decision as reliable. The most recent case law, however, supports Nielsen: the decision was another of the golden oldies revived by the House of Lords in Austin. Does that mean, therefore, that on the basis of the Code of Practice, parental consent is still sovereign after all?

And finally: is a decision about cancer surgery really – and by reason only of its magnitude – beyond the remit of a child’s parent? If it is, can we say with any degree of certainty that such a state-of-affairs is itself consistent with the general social standards concerning the sorts of decisions it is acceptable for parents to make?


These changes are worryingly vague, both in their implications and in their own terms. But if each change is taken at face value, it produces some results that are startlingly clear.

If, ultimately, a judge is to decide whether a child can have medical treatment, a vulnerable adult be protected or incapable person deprived of liberty, a great measure of professional discretion will have to be surrendered. And if the judge that makes such decisions sits in the Court of Protection or the Family Division, and not the High Court, his or her remit will be wider and the yardstick will be merits, not reasonableness.

This will change the practice across wide areas of health and welfare law, so that the judge ceases to be a simple reviewer of public decisions and becomes instead a primary decision-maker. It would be understandable if, in these times of travail, there were to be a loss of faith in professionals. But it’s still a bit of shock to realise that as far as the government is concerned, we are all bankers now.