Last week's edition of the New Law Journal carried the following review of my essay collection, A Tendency to Laugh and Sing, after which this blog was named. It was written by Tim Spencer-Lane, who is a lawyer with the Law Commission
Dr David Hewitt will be a name familiar to most NLJ readers, especially mental health lawyers. As well as being a prolific writer and commentator, he is a mental health solicitor, visiting fellow of Northumbria and Lincoln Universities and a judge of the mental health tribunal.
This book is a collection of articles and lectures written by Dr Hewitt between 1995 and 2007, including several that appeared originally in NLJ. Some are short and sweet (for example, a one page letter to the editor of the British Medical Journal on the landmark Bournewood case) others are lengthy and academic.
The book is divided into five chapters. The first looks at the impact of the European Convention on Human Rights on mental health law. The second deals with significant issues in mental health case law during the period. The Bournewood case and subsequent legal developments in the field of mental incapacity are covered in the third chapter. The fourth looks at the previous government’s lengthy attempts to overhaul mental health legislation, including the aborted draft Bills of 2002 and 2004, which ended with the amending of the Mental Health Act 1983. The final chapter is described as a “ragbag of articles” which do not fit easily into the other chapters—such as the definition of a hospital in mental health law and risk assessments in relation to violent sexual offenders.
Poignant
The poignant title of the book is taken from an official report on a 19-year-old Mexican-American woman who was arrested in Arizona in 1912 and who was subsequently confined involuntarily for over 50 years. But Dr Hewitt often does good titles; my personal favourite being “Bournewoodn’t” for an article where he argues that the new deprivation of liberty safeguards introduced by the Mental Health Act 2007 may not have protected Mr L, the original Bournewood patient. The period covered ensures that the book provides a fascinating historical record of a tumultuous era in mental health and incapacity law reform.
Civil & human rights
However, the real strength of the book is to showcase Dr Hewitt’s impressive body of work and unique writing style. He presents intellectual analysis in a down to earth and readable style, and is not afraid to explore original and independent lines of argument. For example, while other lawyers condemned on civil rights grounds the previous government’s proposals to reform mental health law, Dr Hewitt claimed that the reforms were unnecessary since they had already been introduced via case law. In a series of articles contained in the book, he argued that the criticisms should not just be aimed at the government but at the deep flaws within existing mental health legislation which had already, for example, diluted the strength of the “treatability test” and allowed the introduction of compulsion in the community via long term leave from hospital. Perhaps his arguments lacked the passion of the human rights lobby but nonetheless they raised significant intellectual challenges for the then government.
Furthermore, in several other articles also contained in the book, Dr Hewitt develops an intriguing line of argument on the distinction in law between a “detention” and a “deprivation of liberty”, with only the latter, he suggests, eligible for the Art 5 safeguards under the European Convention on Human Rights. The devastating implication of Dr Hewitt’s argument is not only that the deprivation of liberty safeguards are otiose but that Art 5 is not engaged where patients are detained under the Mental Health Act 1983 in their best interests. If correct, this situation requires urgent remedial attention since it strikes a lethal blow potentially to the legal rights of many mental health patients. The book does have its faults. Many of the articles may now be of academic interest, the substantive legal issues and case law have since been settled, and some articles repeat each other. But overall this book sets out an impressive body of work. Dr Hewitt’s work has always appealed primarily to mental health specialists, and if you fall within this camp, this will be compulsive reading.
