Protecting the Capacitous against themselves: Inherent Jurisdiction and the Mental Capacity Act.

mike stone 09/09/20 Dignity Champions forum

Protecting the Capacitous against themselves: Inherent Jurisdiction and the Mental Capacity Act.

I was contacted by someone on Twitter a couple of weeks ago, and this led to me briefly pondering something called Inherent Jurisdiction (IJ). I have always managed to avoid IJ - it will not be a consideration for the end-of-life issues I write about, and it is more relevant to Deprivation of Liberty or situations which involve the Mental Health Act.

I would describe Inherent Jurisdiction as a legal principle, which allows senior judges to develop case law to cover situations which are not covered by Statutory Law - to 'fill in gaps' where Parliament has not covered something in legislation.

As I understand it (and this might be wrong) the Law Commission's recommendations were for two laws, an Act which became the MCA and a separate Act to cover 'priotecting mentally-capable but vulnerable' people. The second law was not developed and enacted. However, there were attempts to incorporate within the MCA provision to protect capacitous people - but that was rejected during the passage of the MCA into law. It seems to be arguable, that 'statute has considered and rejected the idea of capacitous but vulnerable', but judges have rejected that argument.

What is very clear, is that the MCA does NOT include the concept of protecting capacitous people: the framework of the MCA requires that only people lacking capacity can be protected against themselves.

There are various court rulings which I have collected at the link below:

One of the cases, involved a woman who was refusing life-saving kidney dialysis. The judge ruled that she was capacitous, and therefore she could refuse the treatment. The following section from the ruling is very clear:

97 The decision C has reached to refuse dialysis can be characterised as an unwise one. That C considers that the prospect of growing old, the fear of living with fewer material possessions and the fear that she has lost, and will not regain, 'her sparkle' outweighs a prognosis that signals continued life will alarm and possibly horrify many, although I am satisfied that the ongoing discomfort of treatment, the fear of chronic illness and the fear of lifelong treatment and lifelong disability are factors that also weigh heavily in the balance for C. C's decision is certainly one that does not accord with the expectations of many in society. Indeed, others in society may consider C's decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity. The court being satisfied that, in accordance with the provisions of the Mental Capacity Act 2005, C has capacity to decide whether or not to accept treatment C is entitled to make her own decision on that question based on the things that are important to her, in keeping with her own personality and system of values and without conforming to society's expectation of what constitutes the 'normal' decision in this situation (if such a thing exists). As a capacitous individual C is, in respect of her own body and mind, sovereign.

The way that judges use IIJ, is to 'protect' individuals who are NOT claimed to lack mental capacity. I have issues with the idea of protecting a capacitous elderly parent who is nearing death, or of protecting a capacitous sibling who has a severely life-limiting, but not life-threatening, condition. A life being lived, should be judged by the person who is living the life. I must admit, that I would probably feel 'conflicted' in respect of my support for self-determination if I had a child who was a young adult and at risk of dying because of anorexia.I

There is a natural human urge, to 'protect the vulnerable' - I suspect that many people who work in mental health automatically drift towards 'the person seems abnormally self-destructive, so something must be impairing their capacity, hence we can protect the person'. That is 'circular' and distorts what the MCA actually says - it is 'MHA thinking'. Inherent Jurisdiction goes even further - in my view, it can easily be inappropriately applied.

Some lawyers have written a piece about IJ, which looks pretty good to me - you can get to their piece from the link below (it leads to a page from which you can download their piece as a PDF):

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kevin SLATER 09/09/20

This kind of thinking would have one going round and round in circles, quality of life is paramount to any situation and it is not until you are faced with it that you have to deal with it, many years ago when we did not have the right to say we had had enough, i nursed my father through cancer and yes if i had had access to the right medication i would have hastened his painful ending as i knew what my father wanted. There is no glory in dying a painful end of life whether it be physical or psychological, to me it is not a complex situation or decision unless you have a personal narrative. Its what supposedly makes us human beings and not getting caught up in law or policy and what ifs or maybes. its as simple as you make it with this rhetoric the no thing is ever solved