Labour must take responsibility for the immense human suffering caused by the Mental Capacity Act 2005 (Picture licensed from Dreamstime)

The Witchfinder discovers that the Court of Protection is now on the verge of collapse. Bombshell Court papers show that it is contemplating bulk Deprivation of Liberty applications without representation of the person being detained.

The Mental Capacity Act 2005 (MCA) has been the subject of unprecedented criticism. It is a law passed by Labour and intended to fill various gaps in existing legislation. Like nearly all Labour legislation it has been praised for its visionary principles but destroyed due to its cumbersome, expensive and poorly thought out machinery. That machinery is now falling apart.

In 1983 the Conservative Party passed a Mental Health Act (MHA) to deal with the problem of allowing individuals found to be insane to appeal against detention in a mental hospital. The Act established a tribunal system still in use today. It is cheap, quick and deals sensitively with its subject matter. There is a psychiatrist on the panel so the complaints of financially partisan expert witnesses rarely arise. Just over 1/3 appellants are released before their appeal is heard or by the tribunal.

By contrast, in 2007 the Labour Government extended the MCA to cover a subset of persons identified by the European Court of Human Rights as unprotected. The Labour Party created the Deprivation of Liberty Safeguards (DoLS), which are essentially intended to do the same thing as the Mental Health Act 1983 but cover persons who ‘lack’ capacity. This left the UK in the bizarre situation of having 2 laws written to do almost exactly the same thing.

The DoLS have been criticised by families, courts, councils, social workers and the media. This year the House of Lords Committee on the Mental Capacity Act called for their abolition, saying –

“257.  The level and breadth of criticism of the Deprivation of Liberty Safeguards, including from the judiciary, demonstrates that the legislation is not fit for purpose. Better implementation would not be sufficient to address the fundamental problems identified.

258.  We therefore recommend that the Government undertake a comprehensive review of the DoLS legislation with a view to replacing it with provisions that are compatible in style and ethos with the Mental Capacity Act. The model of widespread consultation that preceded the Mental Capacity Act itself should be followed, with adequate time allowed for effective Parliamentary scrutiny.”

The Witchfinder agrees. The DoLS are riddled with conflicts of interest. The DoLS system is run by local councils who have to pay for them. The council also appoints (possibly on a paid consultancy basis) the people who –

• decide whether the person’s actual or proposed conditions amount to a deprivation of liberty and if they get safeguards
• decide whether a deprivation should be authorised
• represents a detained person (e.g. to appeal)
• conducts any first instance review of the detention

Needless to say the system is far less friendly to the detained person than the MHA. In fact only a tiny handful of people ever succeed in appealing a detention and in fact the number is so small and embarrassing that the Government has not been collecting outcomes figures.

At the same time the Court of Protection is a variation of the High Court with all the baroque procedures of the same. This makes it inaccessible to normal people, let alone those on the borderlines of Mental Capacity. The system is also fabulously expensive for local authorities.

As a result of the expense of using the Court of Protection, local authorities, with the benefit of a supportive ruling by Munby J in a case called Cheshire West had begun to rely on a loophole that some people were merely ‘restricted’ in their liberty. This led to the obscene practice people crying and begging and kicking down doors were found not in fact to be deprived of their liberty at all. I use this expression literally, not in an exaggerated sense because your author describes exactly what happened in the case of C v Blackburn With Darwen Borough Council & Ors.

Fortunately, in March this year, shortly after the House of Lords called for the abolition of the DoLS, the Supreme Court overturned Cheshire West and declared the heinous practice of redefining liberty as unlawful. It was something the Witchfinder and others such as Liberty and John Hemming MP had been campaigning for.

Labour’s chickens are coming home to roost. As a result of the ruling, literally thousands of cases must now be fed into machinery that Labour never intended to work. The Court cannot cope and so these cases are simply languishing – paperwork gathering in an ever greater pile of unhandled appeals. In Britain in 2014 you can easily get a Court hearing for a small claim but heaven help you if you are deprived of your liberty because the Court of Protection sure as hell will not be any time soon.

The Court of Protection has frequently been compared to the Court of Chancery immortalised by Charles Dickens. With eerie prescience, in May last year your author published an article entitled Bleak House is Not a Book of Instructions. One of the key features of the Court of Chancery was its extreme slowness, with the case of Jarndyce v Jarndyce based on the real life case of Charlotte Smith, which took 36 years to get through the Court.

The Witchfinder has now encountered several cases of individuals who have made applications only to be met with silence from the Court. One individual who had issued proceedings enquired after two months where the papers were only to be told by a clerk that they had been lost in a pile of 140 unhandled applications from one local authority alone.

At a hearing on 08/05/2014 the President of the Family Division Munby J held a hearing in open court, (which means that what was said can be published) on 05/06/2014 asking (amongst others) the following questions –

• does P need to be a party to proceedings to detain them (that is able to take part and see evidence)
• does P need to be a party to proceedings to review their detention
• does P need to be represented
• can Court officers (clerks) authorise Deprivation of Liberty
• and … “Would ‘bulk’ applications be lawful?”

This is blackest comedy. It is bad enough having a fabulously expensive Court that is vastly less effective at what it does than the tribunal system alongside it. However what possible purpose can be served by an appeal system in which the person making the appeal is not invited to take part?

There was a hearing on 05-06/06/2014. The judgement has not yet been given but after the hearing the government issued a response to the House of Lords saying that the Deprivation of Liberty Safeguards would not be abolished. The same time-serving civil servants appointed by Labour who passed the DoLS are now desperately trying to cover themselves. It must not stand. The DoLS system must be abolished and the civil servants and politicians responsible must be hounded out of public life, forever.