Category Archives: Mental Capacity

Rest in Peace Margaret Thatcher

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The Witchfinder praises Margaret Thatcher’s legacy, especially her less well known work helping the vulnerable.

Margaret Thatcher

Margaret Thatcher (image via Wikimedia Commons)

It feels slightly strange, writing a eulogy for Baroness Thatcher. Until I left Labour in 2008, it was inconceivable. My family are three generations Labour – I am a lone blue rose amongst crimson thorns. At university I was a Labour student, inculcated in their doctrines of hate towards anyone, even within the same party, who disagreed with their views.

I also initially felt under-qualified to comment being only a newcomer to the Conservative Party as of 2009. However there is one area for which Mrs Thatcher deserves praise but has received relatively little and of which I have specialist knowledge. As a law student one of my specialist interests is assisting those alleged to lack mental capacity, or their families. I have assisted people in the High Court and been allowed occasionally to exercise rights of audience as a McKenzie Friend.

The Mental Health Act 1983 (MHA) was introduced by Margaret Thatcher’s Conservative government. It comes to mind because its effectiveness as kind but pragmatic legislation is highlighted in comparison to Labour’s cack-handed car-crash of a law, the Mental Capacity Act 2005 (MCA) introduced by Tony Blair’s government. Both do the same job, essentially dealing with compulsory intervention in the lives of people with mental illness or disability.

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Some Cuts are Long Overdue

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In the last year the UK Family Courts have been criticised by British MPs and the governments of foreign countries such as Slovakia. The Norgrove Report described it as “a system that is not a system, characterised by mutual distrust and a lack of leadership, by incoherence and without solid evidence based knowledge about how it really works”. Now the Association for Improvements in the Maternity Services has joined in the chorus of complaints. The Witchfinder calls for change.

The Government has no money. Thanks to the reckless mismanagement of Gordon Brown and Tony Blair’s discredited government the incoming coalition have been forced to make cut after cut against services that many rely on. Curiously however there is one black pit of government waste that has escaped almost unscathed.

I refer of course to the Family Courts. The existence of such an institution in some form is a necessary evil. As a law student I am often asked for my help and sadly, about 75% of the time on looking at the case I would be driven to make the same decision as the social workers or the judge. The problem is that with the other 25% where the decision was wrong or arguable the system makes it hard to challenge social services or Court decisions. In nearly 100% of the cases it is too slow and vastly too expensive for public and parent alike.

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The Inadequate Act

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The Witchfinder notes recent criticisms of the Mental Capacity Act 2005 by the judiciary.

Burning Money.

Imagine lots and lots of money, burning. This is functionally indistinguishable from imagining a Deprivation of Liberty Safeguards case in the Court of Protection.

I like Mr Justice Mostyn – he is one of my favourite judges. This article is about a recent public judgement in which – like many others – he has felt the need to comment about the lack of protections for those subject to the Mental Capacity Act 2005 (MCA). The Witchfinder includes no information not in the public judgement.

The case concerns the safeguards that should be made available to a mentally incapable man. The nature of the man’s incapacity is not really important. What is important is the way this judgement further throws into sharp relief the inadequacy of the safeguards under the MCA.

In order to make the judgement less dehumanising, Mostyn refers to the man as ‘George’. George is not his real name. Unfortunately it appears that George is a sexual deviant who needs to be confined, strip searched and to have his phone-calls and correspondence monitored for the safety of others.

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Sent To Prison for Talking to a Lawyer

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An article about a terrifying judgement of the Court of Protection in which a man’s daughter was imprisoned for contempt for taking him to see a lawyer to challenge his placement in a care home by the local authority. And for witchcraft. Yes really, witchcraft.

If your local council places you in a care home and you or your family object can you talk to them about it? Can you talk to a lawyer? Or would that be contempt of Court punishable by imprisonment? What if your family helps you? Would they be in contempt?

Most reasonable people would say a resounding “No” to the question of Contempt. Step forward HHJ Cardinal – the circuit judge with the courage to say “Yes!”

The case of SCC v JM, and ors is reported on Mental Health Law Online and is an anonymised public judgement. The Witchfinder publishes no information other than what is already in the public domain. The document has been missed by the national media so far, which is a shame as it is a horrifying and clear cut scandal. The case concerns an elderly man, JM, who suffers from Alzheimer’s syndrome and has been placed in a care home. There is apparently some form of dispute about his residence, which has led to litigation in the Court of Protection.

JM has three children who disagree with the local authority. This is not uncommon. Your humble correspondent the Witchfinder is a law student who often advises such people pro-bono. About 75-90% of the time the local authority is right. Roughly 25-10% of the time there is something to be said for the other side. About 10-5% of the time it is a horror story.

The disturbing thing about this case is that, according to the judgement, an order was made by Judge Owen on 19/05/2012 that prohibited the respondents (the old man’s children) from helping the vulnerable elderly man challenge the placement – “the respondents should not encourage JM to leave or to ask to leave his placement, or discuss with him the possibility of moving back home, or remove him from the jurisdiction of the court.”

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