The Witchfinder praises Margaret Thatcher’s legacy, especially her less well known work helping the vulnerable.
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.
I will briefly compare these laws. The ‘sectioning’ process under the MHA and the ‘Deprivation of Liberty Safeguards’ (DoLS) under the MCA fundamentally, in crude terms, allow people with some form of mental disability or distress to be locked up. The two different parallel laws arise from arcane legal issues (which to some extent I believe are semantic) between concepts of mental health and capacity. You say potato, I say pot-ah-to.
| Law | Mental Health Act 1983 | Mental Capacity Act 2005Deprivation of Liberty ‘Safeguards’ |
| Introduced by PM | Margaret Thatcher | Tony Blair |
| Party | Conservative | Labour |
| Being detained | If you are mentally ill and potentially a danger to yourself or others, two doctors and a social worker must sign off to have you detained in hospital. I have crossed out the word social worker because Labour reformed the act slightly to include ‘Approved Mental Health Professionals’. | Under Tony Blair’s DoLS law there are six assessments but somehow only two people are needed to agree. More paper, more cost, less actual protection. For our money we get – (a) Age Assessment, (b) No Refusals Assessment, (c) Best Interests Assessment, (d) Mental Capacity Assessment, (e) Mental Health Asessment and (f) Eligibility Assessment. |
| The appeal form | If you are detained and either you, or your nearest relative, wish to appeal then you fill in a 3 page form (T110). That’s it. | First, if you are a relative fill in a two page form (form COPDLC). No – not the appeal – form COPDLC is just the permission to apply. If you get permission (or you are the person detained and don’t need permission) move on to the next form (COPDLA, 9 pages). Attach your witness statement (form COP24, 4 pages). Also a draft court order (there is no form to help you do this). Did I mention there is no guide to help family members do this. Then make copies for all parties (usually a minimum of 3) plus one for the Court. Having made your quadruple or quintuple copies issue at the Court (a snip at £400) and serve one on each party. File a certificate of service with the Court (COPDLD, 2 pages).Thanks to New Labour’s inability to draft functional legislation the Courts are sadly overburdened with MCA DoLS appeals cases so in order to have a chance at quick results you need to also apply for interim relief. So a simple interlocutory application. Did I mention there is no guide to help family members do this. A doddle. Just fill in form COP9 (5 pages) another witness statement (COP24 again, 5 pages) and another draft order. That brings our running total to 31 pages or so. In quintuple, please. |
| Experts | A medical expert sits on the tribunal | The parties are required in general to use a joint single expert witness. There are numerous criticisms of this process – for example my article just before this one cites four critical academic papers. |
| Litigation capacity | Tends not to be an issue | The person appealing may be held to not have the mental capacity to instruct a lawyer or represent themselves and they may be forced to have a ‘litigation friend’ represent them. The litigation friend can drop the case before a decision, against the will of the person appealing. |
| The (first) hearing | Tends to be the last hearing and a decision is made. | Directions, interlocutory applications etc |
| Subsequent hearing (usually MCA DoLS only) | / | Findings of fact, final hearings, further interim hearings. Imagine a pit into which endless piles of money are shovelled. |
| Timespan | < 8 weeks for a standard case. | Call it a year. Plenty of time to read Bleak House by Charles Dickens. |
| Outcome | Last year 25704 people appealed against being sectioned. 36% were either let out by their doctors before the hearing, or released by the Tribunal. | The procedure is so inaccessible only a tiny number of people have ever even applied.Eventually, in a literal handful of cases a lucky few obtain that near mythical declaration that P has Mental Capacity (and must be released) or it is in P’s Best Interests to be released.The government does not even track cases on how many people succeed. |
This leaves out various concerns around conflicts of interest under Tony’s MCA. For example, the council doing the detaining also chooses and pays for the person’s representative supporting them in appealing.
Fairly obviously the fact is that even today the laws brought in by Thatcher do more or less the same job as Labour’s MCA, (barring certain arcane niceties of law) at less than a tenth the price, in less than a 5th of the time and with far more successful appeals. The many other achievements of Margaret Thatcher’s government should not overshadow the often overlooked compassion of this successful legislation.
Another achievement of Margaret Thatcher is her inspiration to a generation of successful Conservative women. One example is Louise Mensch, whom the witchfinder respects for her campaigns against cyber-bullying and her recent stand against torture in Saudi Arabia. Mensch is also an exceptional tactician who has done much to expose malignant left wing hatred, for example on social media.
The left wingers who celebrate Margaret Thatcher’s death celebrate only their own ignorance.
Hmmm… well, it’s certainly interesting to compare the two Acts in this way, not sure you need to shoehorn a Thatcher eulogy into that (which is why I’m not tweeting the link, sorry). Regarding appeals though – it’s true that it’s an almighty faff to issue proceedings in the COP compared with the Tribunal, however the charges you refer to (for permission) won’t apply to the equivalent to the Nearest Relative – the relevant person’s representative. Furthermore, as far as I’m aware the only remedy a person who is not the nearest relative under the MHA has to spring their loved ones from detention under the MHA would be a judicial review and/or habeas corpus – I dont’ think they can apply to the Tribunal. Meanwhile, there is a free guide to the DOLS for families produced by the DH (which, it must be said, is in significant need of revision), whilst the only guide for nearest relatives that I’m aware of is written by David Hewitt and is £19 on Amazon. It’s very good, but why isn’t there a free version (why don’t the DH pay David for the rights and publish it themselves for free?).
The contrast of joint expert witnesses and single medical witness could do with more consideration as well – some criticise the role of the medical member as effectively a ‘silent witness’ whose view isn’t properly cross-examined. Richardson’s work on tribunals calls for acces to independent experts.
Litigation capacity – undeniably a thorny area, but that’s not down to the drafting of the statutes so much as the Tribunal and Court rules and evolving practice in those areas.
As for the number of hearings, until research is done on why there are so many in the COP, and how and when adjournments are used in the Tribunal, it’s difficult to know whether multiple hearings reflects inefficiency or the demands of justice and fairness. More research needs to be done on this.
It is undeniably problematic that it’s so hard to get to the COP under the DOLS in contrast with the Tribunal under the MHA. I think this is an area which needs much further thought and work. But whilst the Tribunals are often help up as being better than the COP for detention disputes (and by no means everybody agrees with that), they are often subject to extensive criticisms themselves. We can learn a lot from the MHA and the Tribunal, but it’s not obvious that we should just replace one with the other.
Actually, it is the other way around. I wanted to write something nice about Margaret Thatcher, and use the Mental Health Act as it is a piece of good legislation (visible as I say from comparison with Labour’s efforts) because it is an achievement she is not usually praised for and allowed me to say something different.