A new review

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.

No place like home?

Since April, many hospitals and care homes have had the power to deprive people of their liberty. That is the result of the DoLS – the Deprivation of Liberty Safeguards.

The government prefers to see the DoLS as protection: a way of preventing the arbitrary detention of the old and the incapable. It is certainly true that the DoLS were introduced to fill a gap in the law; a gap rather embarrassingly revealed by the European Court of Human Rights in the 2004 case of HL v United Kingdom. Presumably, therefore, it would be a cause for concern if the new safeguards were not being used.

The government forecast that before next spring, around 21,000 people would have their cases assessed under the DoLS and a quarter of them would then be brought formally within the safeguards. According to the latest statistics, that is simply not going to happen.

* Of the more-than-300 local authorities and PCTs charged with implementing the safeguards, a large number claim to have had very few DoLS cases, and 14 have still not had any cases at all.
* If the experience of the first seven months is anything to go by, only around 8,000 – as opposed to the forecast 21,000 – people will be assessed in the first year of the DoLS, and the number of people brought within the substantive safeguards will be little more than a third of the predicted number.
* In fact, these national figures conceal an even more striking regional picture. One council, for example, reported 105 DoLS cases in April and May, while only two of its neighbours even reached double-figures.

These statistics are unpublished and unofficial, but they suggest that the reality will fall well short of the government’s own forecast for the DoLS, a forecast that was widely criticised for being too conservative. So, what is going wrong?

The powers given by the DoLS are not unfettered: they can only be used with prior permission from a PCT or a local authority. That in itself is controversial, given that it means that decisions about people’s liberty are now being taken by what are, with the greatest respect, administrative bodies. One problem in the Bournewood case was the patient’s lack of ready access to a court, and although the Court of Protection remains a long-stop, that problem might not have been solved by the DoLS. It is perhaps surprising that the Daily Mail hasn’t shown more interest.

Furthermore, the procedure for seeking DoLS permission is complex and bureaucratic - many would say unnecessarily so. It can take up to three weeks and involves several lengthy forms, six separate assessments and, usually, at least one psychiatrist and a social worker. Maybe that is what has made the procedure unpopular.

There are also broader problems with the DoLS, not least the fact that because of the way they are drafted, they might not even apply to the patient whose case led the ECtHR to do what it did. Furthermore, a recent decision of the House of Lords in a public order case might mean that there is no one – not a single patient with a learning disability or little old lady with dementia – to whom the DoLS apply. Maybe that explains the figures.

And there is also great uncertainty about precisely when the DoLS apply, reflecting similar uncertainty about just what it means to be deprived of liberty. Surprisingly, given its importance to what are, after all, the Deprivation of Liberty Safeguards, the term is not defined, either in the DoLS or in the slim code of practice that accompanies them. And now, there is growing anecdotal evidence that practitioners are taken wildly divergent views. That is unfortunate, both in itself and for a further reason: the statistics suggest that where a request for DoLS permission is refused, the commonest reason is that the patient was not deprived of liberty. If that conclusion was reached in error, permission is being refused where in truth it should have been granted, and a vulnerable person is being unlawfully detained.

But there might be another, perhaps related, explanation for the low take-up of the DoLS: that in some – quite a few, in fact - parts of the country, applications are being actively discouraged. That would be very worrying, and not just because public bodies would be failing in their duties. Hospitals and care homes too would be placed in jeopardy. Where permission is required to deprive an incapable person of liberty, the failure to obtain it will be unlawful and that one was discouraged from seeking it will be no defence.

(This post first appeared as an article in the New Law Journal)

Deprivation aside, what is liberty?

Liberty is important, not least for the new safeguards that take its name. But what, in that context, does the word mean? The Deprivation of Liberty Safeguards (DoLS) are intended to protect incapable people admitted to hospitals or registered care homes. As the title suggests, they say that permission will be required before such people can be deprived of liberty. Given the importance of the notion, you might imagine that ‘deprivation of liberty’ is carefully explained. It isn’t: the DoLS use the term but don’t define it, and the accompanying code of practice says little that is original. In fact, the code simply restates the existing law, which might be where the problems begin.

Strasbourg
The DoLS seek to remedy defects identified by the European Court of Human Rights (ECtHR) in the Bournewood case. Those were defects in the common law, which the court said was too vague and too lacking in procedural safeguards to give many incapable people the protection demanded by the ECHR (HL v United Kingdom [2004] 40 EHRR 761).

The defects would only be apparent where Article 5 of the Convention was engaged; where, in other words, someone was deprived of liberty. The ECtHR said, “the starting-point must be the concrete situation of the individual concerned”, and that in deciding whether a particular intervention deprives someone of liberty, “account must be taken of a whole range of factors arising in a particular case[,] such as the type, duration, effects and manner of implementation of the [intervention] in question”. Crucially, the court said the distinction between deprivation of liberty, which will engage Article 5, and a mere restriction upon liberty, which will not, “is merely one of degree or intensity and not one of nature or substance” (HL v United Kingdom, above, paragraph 89). These words have proved extremely resonant.

The scale theory
The DoLS code draws heavily upon Bournewood. Noting the comments of the ECtHR on the crucial distinction, the code says: “It may therefore be helpful to envisage a scale, which moves from ‘restraint’ or ‘restriction’ to ‘deprivation of liberty’. Where an individual is on the scale will depend on the concrete circumstances of the individual and may change over time” (Department of Health, 2008, Deprivation of Liberty Safeguards: Code of Practice, paragraph 2.2).

There are, however, several problems with the ‘scale’ theory of deprivation of liberty. The first concerns its range: rather than with ‘restriction of liberty’, which surely comes some way along, shouldn’t the scale begin with ‘liberty’ itself? Logically, of course, there must be a number of points on the scale, each one representing a particular intervention in a patient’s life, from those that represent only a slight diminution of liberty to those that approach deprivation of liberty. But the number of possible interventions is not fixed; new ones might be made from-time-to-time, and any of them might be modified in numberless ways. The second problem, therefore, is that we can never know precisely how to populate our scale. Imagining, as it seems we must, that the poles represent complete liberty and its deprivation, where on that scale are the various interventions to be placed, and, crucially, where in relation to each other? Is putting someone in a low chair closer to deprivation of liberty than to liberty, for example, and how does it stand in relation to shepherding someone away from an open door?

The third problem relates to something else said by the code: when deciding whether someone is deprived of liberty, we might ask “Does the cumulative effect of all the restrictions … amount to a deprivation of liberty, even if individually they would not?” (ibid, paragraph 2.6). This begs an obvious question: if all we have is the scale, on which single interventions are placed side-by-side, how are we to take account of the aggregate of two or more of them? How, in fact, are we to aggregate them at all, and even if we succeed in doing so, where precisely are we to place the aggregated intervention? Is shepherding someone away from an open door closer to deprivation of liberty than putting him in a low chair and reducing the length of his visits from friends? How will the scale help us decide?

Finally, of course, there is the problem inherent in the very notion of a scale: all it does is display subtle progressions between two points, so it cannot help us with the DoLS. The knowledge that the use of ‘baffle locks’ tends rather more to the right-hand end than to the left is worthless. When what we most require is a ‘yes/no’ answer, the scale is deliberately designed to yield no such thing.

There is an alternative solution; one that is becoming common where the DoLS are used (or at least considered): to take the factors that suggest someone is being deprived of liberty and weigh them in the balance against interventions that are assumed to suggest the contrary. In that way, for example, the conclusion might be reached that a person placed in a low chair is not deprived of liberty today because he will see his friends tomorrow. Yet, though it might seem seductive, this act of balancing is also problematic, for it betrays a fundamental misunderstanding of the nature of liberty itself.

Liberty as an absolute
Among philosophers, there is surprising agreement about what liberty means. Even those who have very different views about its implications and, indeed, its derivation seem to accept that it is an absolute. For Thomas Hobbes, for example, “Liberty, or freedom, signifies the absence of opposition […] a free man is he that in those things which by his strength and wit he is able to do is not hindered to do what he has a will to” (Leviathan, 1651, chapter 21).

Generally, John Stuart Mill’s views were different from those of Thomas Hobbes. That the two men shared a common view of the fundamentals of liberty, however, is clear from Mill’s description of his ‘harm principle’: “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant” (John Stuart Mill, On Liberty, 1859, chapter 1). And, a century later, Isaiah Berlin wrote, “I am normally said to be free to the degree to which no man or body of men interferes with my activity … If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved … By being free in this sense I mean not being interfered with by others” (Two Concepts of Liberty, 1958).

This notion, that we enjoy full liberty until, and only to the extent that, it is taken from us, is acknowledged in prison law. It would be surprising, therefore, if it did not obtain in the case of hospital and care home residents - the elderly or the profoundly learning disabled who might be expected to form the majority of DoLS patients.

Implications
The implications of this analysis are significant, not least when hospital and care home managers, those that advise them and even judges have to decide whether someone is being deprived of liberty. It seems clear that interventions said to increase liberty cannot do so; at best, they simply ameliorate the diminution of liberty. This means that it is incorrect to say of a man that the possibility he will see his friends tomorrow prevents his being deprived of liberty today, even though he is currently sitting in a low chair out of which he cannot rise. The balancing exercise described above is of no assistance whatsoever.

If liberty is absolute, all that need concern us for the purposes of the DoLS (and for other purposes besides) are these diminutions of liberty, and the only question is whether, singly or in combination with others, they are so significant as to amount to deprivation of liberty. (That much larger question is beyond the scope of this article.) Furthermore, the purpose of such diminutions is irrelevant, as is the context in which they occur. (So, for example, a person is as likely to be deprived of liberty in a high dependency unit as on a learning disability ward, something the DoLS, and many of those who should apply them, seem reluctant to acknowledge.)

Recourse to Thomas Hobbes and Isaiah Berlin might help answer a further problem raised in connection with the DoLS: what if a man has never been able to make use of his liberty? Do those caring for him have the additional, positive obligation to help him do so? Hobbes suggests not: “[W]hen the impediment of motion is in the constitution of the thing itself, we do not say it wants Liberty, but the power to move; as when a stone lies still or a man is fastened to his bed by sickness” (op cit). And for Berlin, “Coercion is not … a term that covers every form of inability. If I say that I am unable to jump more than ten feet in the air, or cannot read because I am blind, or cannot understand the darker pages of Hegel, it would be eccentric to say that I am to that degree enslaved or coerced” (op cit).

The Deprivation of Liberty Safeguards are being used far less than even the government expected. That might be because they are complex, or even because, less than 12 months in, they are still unfamiliar. But it might equally reflect widespread ignorance about what it means to be deprived of liberty. That would hardly be surprising, for there is widespread ignorance about what liberty itself means. The Code of Practice only serves to compound the problem. It advances a ‘scale’ theory that is both logically and logistically flawed, and in so doing, it misrepresents the problem it purports to have solved. The philosophical lessons of the last four centuries are clear enough: liberty cannot be weighed in the balance. It is something we have and might lose, not something we can only hope to achieve.

(This post first appeared as an article in the Solicitors Journal)

Why aren't more little old ladies being locked up?

Since April, many hospitals and care homes have had the power to deprive people of their liberty. That is the result of the DoLS – the Deprivation of Liberty Safeguards. The government prefers to see the DoLS as protection: a way of preventing the arbitrary detention of the old and the incapable. It’s certainly true that the DoLS were introduced to fill a gap in the law – a gap rather embarrassingly revealed in 2004 by the European Court of Human Rights. So maybe we should be worried that the new safeguards aren’t being used.

The powers given by the DoLS aren’t unfettered: they can only be used with prior permission from a PCT or a local authority. And there are some broad problems with the DoLS, not least the fact that because of the way they are drafted, they might not even apply to the patient whose case led the ECtHR to do what it did. Furthermore, a recent decision of the House of Lords in a public order case might mean that there is no one – not a single patient with a learning disability or little old lady with dementia – to whom the DoLS apply. Maybe that explains the figures.

The government predicted that before next spring, approximately 21,000 people would have their cases assessed, and that a quarter of them would then be brought within the DoLS. According to the first statistics, that isn’t going to happen.

* Of the more-than-300 local authorities and PCTs charged with implementing the safeguards, well over two-thirds say they have had fewer than five DoLS cases and almost a quarter seem not to have had any cases at all.

* If the experience of the first two months is anything to go by, only just over 8,000 – as opposed to the forecast 21,000 – people will be assessed in the first year of the DoLS, and the number of people brought within the substantive safeguards will be little more than a third of the predicted number.

* In fact, these national figures conceal an even more striking regional picture. One council, for example, reported 105 DoLS cases in April and May, while only two of its neighbours even reached double-figures.

But there is another explanation for this: that in some – quite a few, in fact - parts of the country, DoLS-applications are being actively discouraged. That would be worrying, and not just because public bodies would be failing in their duties. Hospitals and care homes too would be placed in jeopardy. Where permission is required to deprive an incapable person of liberty, the failure to obtain it will be unlawful and that one was discouraged from seeking it will be no defence.

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

Deprived of liberty? Detained?

www.myfolsom.com

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).

Background
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?

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.

Uncertainty
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.

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 tendency@btinternet.com