5 reflections on law reform (and over and out for now)

With a neat (if unplanned) symmetry, work that have been dominating my life has come to  different forms of head in the past couple of weeks.   The Mental Health Review report has been published, the BMA/RCP/GMC guidance on decisions relating to CANH in adults who cannot consent has been published, and (in different vein) the Supreme Court refused permission in Noel Conway’s challenge to the ban on assisted dying.  One substantive project continues in the form of the Mental Capacity (Amendment) Bill, picking up on the Law Commission Mental Capacity and Deprivation of Liberty project to which I was a consultant; although my role now is simply as interested observer.   After a break, it looks like my life in 2019 will be back to writing about, teaching and applying (and possibly occasionally making) law in court.  Offers of formal law reform opportunities are, of course, very welcome!

So now seems like a time to take stock and think about what I’ve learned about law reform over the past few years.  I suspect an article will be forthcoming in due course, but these are, so far, the five key things that have struck me from my adventures in law reform.

  1. Certainty vs discretion

One continuing theme for me has been as to how well the relevant parts of any given system can handle uncertainty.   The better that they can handle it, the easier it is to come up with more creative solutions to problems which maximise the chances of getting the ‘right’ answer in any given situation.   The more difficult they find it to handle it, the more rigid the approach that they have to take, and the greater the consequence for harsh outcomes in any given case.

This theme came out strongly in the topic group convened for the MHA review to consider (amongst other things) where the interface should lie between the MHA and the MCA (in the form of DOLS or, in future, the LPS).   Putting aside the problem in trying to allocate a complex human being to one or other legal box – a problem that will be with us until and unless the MCA and MHA are fused – the central tension is between:

1. a process that fosters discretion in decision-making to allow the person to be allocated to the box which feels best in any given situation, at the cost of apparent arbitrariness, and at the cost of a period of potential uncertainty for the professionals as to what legal basis they are acting on

2. a process which minimises the chances for doubt – and maximises the chance that it can be applied at speed to ensure people and professionals are not kept in legal limbo – by setting down a bright-line test but at the risk of allocating ‘too many’ people to one box or another.

Attentive readers of the Review report will see that the Review sought to straddle the two by giving a bright line test – objection – but seeking to give a window of time within which that test can be considered.  Time will tell how that recommendation is received.

Panning out more widely, however, the theme has been equally apparent in the debates about supporting the exercise of legal capacity for purposes of the CRPD.  The creative solutions that are being proposed to enable more people to exercise legal capacity in more domains can run rapidly into the practical difficulties imposed by those operating systems that require clear-cut answers.  To take two examples from completely different settings:

  1. There is an inherent tension between creating more creative access to contracts and the doctrine of certainty of contract, heightened in the case of financial institutions by pressures from other policy directions to be absolutely clear about the source of monies in play and the identity of the actors in question. The risk in any given situation (and discussed in thought-provoking detail here) is that financial institutions will simply not offer products to those with potentially impaired capacity because they cannot tolerate the resulting uncertainty as to who is the counter-signatory or the basis upon which they are acting;
  2. In untangling Cheshire West, I have suggested (and the Joint Committee on Human Rights have at least in principle endorsed) the idea that we should expand the concept of who can be said to give ‘valid consent’ for purposes of Article 5 ECHR – in essence so as to enable MIG to be seen to be consenting to the arrangements made for at her foster mother’s placement. However, requiring this wider understanding naturally makes some, at least, uneasy because it makes the concept of ‘consent’ less clear-cut than the bright-line drawn by the Supreme Court – a bright line which denies a significant number of people the right to consent to arrangements with which they are entirely content.

One recurring thought that I have had in this regard, which may possibly merit further consideration, is whether the right way in which to untangle at least some of these issues is to focus on ‘good faith’ protections for professionals/financial institutions, etc., so as to give them a greater safety net and make them readier to accept more creative solutions.

2. Individual laws sit in wider systems

It is a truism that the law is only a framework within actions are taken by professionals (and others); the operation of that framework depends on other factors, above all professional cultures, but also ethical and moral considerations.  One of the joys of teaching on the King’s College London Mental Health, Ethics and Law MSc is that we get to examine both mental health and mental capacity legislation in that wider context.

But one thing that has struck me repeatedly in the context of law reform is that it is nigh-on impossible to draw upon the examples of laws enacted in other jurisdictions without understanding the fuller system within those laws are situated.  Based on experience, I would strongly suggest that anyone who has it asserted to them that a particular jurisdiction is now compliant with the CRPD because they have legislation which provides for a full right to legal capacity ask probing questions such as (1) does the jurisdiction have separate mental health legislation; (2) does the jurisdiction have a doctrine of emergency which allows for medical treatment without consent; (3) does the jurisdiction have a legal system in which liability is easily attached to actions carried out without consent?   Unless you ask such questions, you are very likely to get a very distorted picture of how things actually are on the ground for the individual in question – or how they might be changed by legislative reform.

3. Is it better to be silent or express?

One question that has increasingly exercised me has been as to whether it is better to seek to cover all contingencies expressly, or to be silent.  In this regard, it has become increasingly clear to me quite how unusual s.5 MCA 2005 actually is in codifying a doctrine of necessity and seeking to limit it by reference to principles and a set of pre-conditions.  The Adults with Incapacity (Scotland) Act 2000 does not include such a doctrine, and leaves substantial statutory silence in relation to the delivery of care and treatment to those lacking capacity to consent to it (outside the certification process in s.47 in relation to hospital treatment).  Likewise, the new Assisted Decision-Making (Capacity) Act 2015 in Ireland sets up an elaborate and complicated series of mechanisms to support decision-making capacity, but contains no direct equivalent of s.5 MCA 2005, and therefore allows (implicitly) the doctrine of necessity to survive – potentially to cover the vast majority of actions that are actually taken in relation to those with impaired capacity.  Similarly, it would appear that reforms that sound bold in relation to legal capacity largely seem to take place in jurisdictions where there is a wide doctrine of emergency justifying actions taken without consent (and also where there less emphasis upon the ability to bring a claim where action is taken without that consent).

On one view, being silent – or at least not prescriptive – about all contingencies could be viewed as a thoroughly bad idea, because it allows for arbitrariness, as well as providing no basis upon which the decision-maker can be held to account.  It is in significant part for this reason that I have long harboured serious concerns about the use of the inherent jurisdiction in relation to those who are considered to have the relevant decision-making capacity but in some way to be vulnerable; so far, my attempts to propose a statutory underpinning for such steps (akin to the Vulnerable Adults Act in Singapore or the Adult Support and Protection Act in Scotland) have come to naught.

On the other hand, there is a very respectable argument (made powerfully by Phil Fennell, in particular) that seeking to provide legal frameworks that apply in in all circumstances leads inexorably to the juridification of health and social care: in other words, the insertion of legal norms (and claims to authority by lawyers and judges) into fields into which the law has no proper place.  There, is, further, a lobster pot effect – once the lawyers have colonised an area, it is extremely difficult to get them out.  Viewed through this prism, Cheshire West can either be seen as the welcome calling of the confinement spade a spade, and the appropriate recognition that safeguards are required in consequence.  It could also be seen – especially in the context of an environment the person perceives to be their home – to be an intrusion of concepts and legal mechanisms developed in relation to highly coercive situations into qualitatively different settings.  Importantly, it is also then difficult to see how the law can properly withdraw from those settings (especially given the certainty problem set out above).

Further, setting out a comprehensive legal framework designed to limit the scope of actions by those in positions of power (as s.5 could be seen to be doing), could just as easily be read as a message that those in such positions are entitled to use that framework.  It is, in this, telling that s.5, which was deliberately cast as a defence by Parliament, is now routinely referred to, including by Lady Hale (see N v ACCG at paragraph 38) as a general authority to act.  It was in substantial part because of concerns that this authority was being routinely misused by those paying lip service to the formalities but ignoring the principle underpinning the MCA that the Law Commission proposed limiting its availability in relation to certain key decisions (see also here for further thoughts on my part).  The Government has, of course, chosen to take a different course.

Finally, under this theme, there is an entirely different situation in which the tension between being silent and being express has come up repeatedly.  As is now well-known, the CRPD contains a number of strategic silences, most obviously in relation to whether Article 12 CRPD renders impermissible so-called substituted decision-making.  A recent foray on my part into exploring the interaction between the CRPD and the 2000 Hague Convention on the International Protection of Adults made clear to me just how necessary that strategic silence was in terms of securing signatures to the CPRD, even, as discussed shortly, such silence causes its own problems.

4. Law following society or society following the law?

In very different ways, Mr Conway’s case, and the Y case (which underpinned the BMA/RCP CANH guidance) raise the question of whether the law can shape societal norms or must always follow them.  In Mr Conway’s case, it is impossible to avoid the conclusion that a key, if not the key, underlying factor in the rejection of his challenge was the concern that the courts felt at being too far in front of any societal consensus.

Conversely, in An NHS Trust v Y, the Supreme Court clearly took the view that there was a sufficient societal consensus in favour of allowing doctors to take decisions in relation to life-sustaining treatment in respect of those lacking capacity that it was possible in reality to remove what had previously been regarded (rightly or wrongly) as a requirement that at certain of these decisions had to be approved by the courts.

6. How best to create consensus?

Perhaps the biggest question that has dominated my mind over the past few years has been how best to create consensus in respect of law reform, on the basis that consensus amongst as a wide a group of ‘stakeholders’ (a term that I can now say with a more or less straight face) as possible gives the best chance of achieving progress.  I am not thinking here of the travails of the Mental Capacity (Amendment) Bill, which has come closer to collapse during the course of its passage through Parliament than would have been anticipated for such obviously non-partisan legislation, but I could have been.

Rather, I am thinking of a bigger question, namely why the CRPD has had so little impact in England & Wales.   Some tentative answers are below.

If what I think will come to be seen as the first stage of the ‘operationalisation’ of the CRPD has taught us anything, it seems that it is that mere assertion is ineffective.  The truths asserted by the Committee on the Rights of Persons with Disabilities in General Comment 1 as to the import of Article 12 CRPD seek to fill the strategic silence in the CRPD, but have simply not been accepted as self-evident by states and courts (see further in this regard the annex on human rights in the MHA review report).   Arguably more damaging still is the fact that courts have weighed in casting doubt upon the mandate of the Committee and upon its interpretation of the CRPD.   Whilst their doubts have been expressed in the context of Article 12, it is clear to me that there is the substantial risk of ‘blowback’ in relation to the Committee’s role more generally.

In the circumstances, I would rather regretfully have to agree with the outgoing chair of the Committee on the Rights of Persons with Disabilities that it was perhaps naïve of the Committee to take on Article 12 for its first General Comment.  It would, arguably, have been far preferable to start with the General Comment on Article 19 – the right to independent living – a right around which would have been far easier to gain consensus.  That General Comment has now been produced, but in England and Wales at least, has so far sunk almost without trace; it is difficult to escape the feeling that this is, in part, because the CRPD Committee has become in some circles irredeemably tarred with the brush of unreality.

Another reason for regret in relation to the way the Article 12 debates have unfolded is that, whether or not inevitably, the requirement for consistency in campaigning has led in some cases to a problematic smothering of complexities.  The politics of representation in this zone is intensely difficult but I am now entirely convinced that it is infinitely more effective in terms of making headway with policy makers:

(1)   To accept and recognise that there are hard cases.

(2)   To accept and recognise that not all who might be said to require support with the exercise of legal capacity require that support in the same way.  In terms of freely accessible materials, I cannot in this do better than point to this article by Nev Jones, and this comment by Akiko Hart on the MHA review.[1]

Of course, the ‘glass half-full’ view of the situation is that the intense focus on Article 12, and on the interpretation of it advanced by the Committee, has meant that there has been – at a minimum – an intense questioning of why things are done the way that they are done.  Cases such as A-MV v Finland show the European Court of Human Rights tightening the requirements of Article 8 ECHR in the context of those with impaired capacity in a way that would not have been done before.  However, at the moment, it is a very open question whether this process will lead to actual change, or simply re-formulation of existing practice.

I would like to leave these ramblings with the thought that the ‘confidence test’ approach set out in the future direction of travel section of the MHA Review report might represent the right way in which to build consensus for further change in the context of both mental health and indeed mental capacity law reform.  It will not satisfy those who want to take a leap of faith, but it provides grounded mechanisms upon which to satisfy – and prod – policy-makers into moving forward.

With these thoughts, I wish you all very happy holidays if and when they roll around.  I am now taking a break from this site and social media until late January, but will read any comments (on this site or via email) with interest when I return.

[1] I would also mark a note of real concern at the passage in the CRPD Committee’s most recent General Comment (7 on participation) that provides (at paragraph 11) that “organisations of person with disabilities should be rooted, committed to and fully respect the principles and rights recognised in the Convention.”  On one reading, this means that no disabled person’s organisation can question the “party line” taken in General Comments and other pronouncements from the Committee.  This would be an ironic undercutting of the participation principle at the heart of the principle.  I emphasise that this is a very different point to the distinction between disabled person’s organisations and representative organisations discussed very helpfully here.

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