By way of preview for the January Mental Capacity Report, which should be coming out shortly, three reviews of books which have caught my particular attention recently.
The first is the most recent (8th) edition of Cretney and Lush on Lasting and Enduring Powers of Attorney (LexisNexis, £85). Caroline Bielanska has now taken over this work from former Senior Judge Lush, and has done an excellent job of updating this authoritative work to ensure that it covers all the bases concerning these powerful instruments. It, rightly, remains the standard work in its field. Perhaps unusually for a new edition of a legal textbook, it received considerable media coverage upon publication in November, thanks to the foreword contributed by his former Senior Judge Lush, which was widely reported. Former Senior Judge Lush explained why he had never made an EPA or LPA himself, as:
In a nutshell, I have seen so much of the pathology associated with powers of attorney and the causes and effects when things go pear-shaped, that I find it difficult to recall cases where powers have operated smoothly and to the credit of everyone involved.
Former Senior Judge Lush made clear that he had greater confidence in deputyship as a means of managing someone’s property and financial affairs, and that LPAs could have a “devastating effect” it can have on family relationships: “[t]he lack of transparency and accountability causes suspicions and concerns, which tend to rise in a crescendo and eventually explode.” Finally, he explained that he had not made an LPA for health and welfare “because, in most cases, I don’t think they’re necessary:”
The people, who, according to LPA9, don’t know you” and “could end up making crucial decisions for you, such as whether to accept medical treatment to keep you alive” are usually qualified health-care professionals, who will make these decisions in your best interests after consulting you and your nearest and dearest.
Finally, former Senior Judge Lush expressed his concerns that what safeguards there are in respect of LPAs have been consistently eroded in recent years because of the Public Guardian’s drive towards creating and registering LPAs online. Caroline Bielanska raises similar concerns in her preface to the work (and has, usefully, also created a safeguarding guide for legal professionals which is available from her web site to download. It includes precedents, and template documents aimed at reducing the risks potentially posed by LPAs).
We discussed some of the issues raised by both Lush and Bielanska in our September 2017 Property and Affairs report. It was particularly striking re-reading this foreword alongside Rosie Harding’s new book Duties to Care: Dementia, Relationality and the Law (Cambridge University Press, £75), a socio-legal work of the highest calibre examining the regulatory and legal dimensions of caring for a person with dementia. Duties to Care is grounded in a detailed empirical study of the experiences of carers looking after individuals at different stages of dementia, and the world she describes is an almost entirely different one to that depicted by Lush and Bielanska. Put very shortly, the world that they describe is one in which the family is, in essence, the problem; the world is described by Harding is one where embattled families are doing their best to navigate an extraordinarily complex landscape when seeking to care for a loved one with advancing dementia. Powers of attorney only play a small part in her study, and the experiences she relays do indicate some of the same tensions identified by Lush and Bielanska; however, more often, the tension is between the donor and the attorney in circumstances where the donor is uneasy and uncomfortable about having handed over power.
The more that we distrust families to ‘do the right thing’ (whether in the context of potential abuse of powers of attorney, or by extending the tentacles of Article 5 ECHR into private family settings to secure against the risk of potentially arbitrary deprivation of liberty), the more there will be a drive to regulate and inspect. Duties to Care is a hugely important book for identifying so clearly, and with the benefit of data drawn from both surveys and interviews, both how heavily society relies upon informal carers, and how the effect of those burdens (which are both social and, increasingly, legal) weighs upon the carers themselves. It therefore serves not just as a valuable and thoroughly researched contribution to the academic literature, but a vital contribution to a debate about the extent to which we do or should trust families and informal carers – and, in consequence, to whether we should shape the law to seek to support or constrain them.
The third book makes a contribution to a very different debate, namely why we have a mental health law which allows medical treatment under coercion. George Szmukler’s Men in White Coats: Treatment under Coercion (Oxford University Press, £29.99) provides an elegant, and extremely readable, overview of the core issues concerning involuntary admission and treatment, grounded in his own clinical practice and the experience of service users. It then provides an equally elegant overview of the ‘fusion’ solution that he proposes, to create a law that does not discriminate against people with mental illness, and reduces, insofar as possible, the shadow of coercion which hangs over the practice of psychiatry. Whilst he has written about this before, this represents an extremely helpful, and updated, version of the proposal, at a time when the Independent Mental Health Act Review is grappling with the two major currents in mental health policy that he – rightly – identifies as conflicting: namely (1) the move to empower patients as collaborators, not subjects, in research and policy developments; and (2) the risk agenda portraying all individuals with mental health issues as, per se, dangerous. Whether or not one agrees with the proposed solution, the book admirably serves its purpose by sharpening the issues in so clear and cogent a fashion and should be widely read by all those remotely concerned with these pressing issues.
[full disclosure: I acknowledge with gratitude that copies were provided to me of these books – I am always happy to review works in or related to the field of mental capacity (broadly defined)]