No need for the need for a father?

Artemis

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?

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?

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)

Comment
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.

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.

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.

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?

Two falls, a submission or a narrative verdict

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

(courtesy of www.oldtimewrestling.com)

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.