A complex solution to a simple problem
There is a beauty around a simple solution to a complex problem—such solutions seem to have an aura of elegance which glows with efficiency and effectiveness. However, sometimes such auras are a mist which obscures a lack of substance. Sometimes the right thing to do is to find a complex solution to a simple problem. The Mental Capacity Bill which entered the Assembly on 8 June is unquestionably the latter—and it is none the worse for it. How then are we to make sense of this seemingly baroque edifice of 295 clauses and 11 Schedules, of this St Paul’s cathedral of a Bill?
What is the ‘problem’ the Bill aims to solve? It is not complex. We are fragile creatures.. We break down, parts of us stop working (for a short while or for good), some things may never have worked entirely well. This fragility is fundamental to our vulnerable humanity.
One of the things that can go wrong is our mental functioning, which can be disturbed or impaired to the extent that we are no longer able to make a decision on a particular matter. This can be for many possible reasons: concussion on a sports field; profound mental illness; a malarial high fever; dementia; an adverse drug reaction; learning disability; a bit of drunken boxing on Christmas Day over the family dinner table; or a multitude of other possible reasons. Few people are incapable of making any decisions, but most of us at some time will be incapable of making one or more. When our mental functioning is affected, or when we interact with those who are so affected, it touches us deeply because making decisions is at the core of our fragile humanity.
To be able to make decisions for oneself is to be free. It is to be able to give shape to one’s own life, to take risks, to do that which others consider unwise, even to do what others find incomprehensible. Freedom is one of humanity’s highest values; loss of freedom one of its greatest distresses. That loss can be the result of barriers imposed on us from outside, through external walls and doors, from being held and forced, or subject to oppressive laws. It can also be a loss which results from a loss of an internal capacity, a loss or absence of full mental functioning. Too often, and for too long, the law has responded to a loss of freedom from a loss of mental functioning by disproportionately imposing a second loss of freedom through locking people behind doors and walls, by subjecting them to compulsory treatment and discriminatory laws. A loss of mental functioning led to the taking away the right to make decisions for themselves that they are in reality capable of making.
The Bill seeks to be a new approach to law which reflects how people in Northern Ireland think about such issues today as well as meeting the human rights obligations of the Northern Ireland government. In seeking to deliver on these aims, the Mental Capacity Bill is innovative, but it is not wholly new. Much of it is a combination of what is already long-standing common law combined with approaches derived from the Mental Health Order. It is innovative in that it no longer treats those whose mental functioning is impaired on a different basis to others simply for that reason. What matters is whether the person has the mental capacity to make a decision, not what the decision relates to—mental and physical health issues are dealt with on the same basis. The Bill removes the legal category of the ‘mentally disordered’ as somehow a subset of humanity who differ from the remainder of us so much that they need a special law to accommodate them in society. The Bill applies to everyone on an equal basis, in a non-discriminatory way. In this it is in step with current progress in global thinking, including developments in international human rights law, and the direction of law reform in other jurisdictions. As Alex Ruck-Keene recently put it to the Assembly Ad Hoc Joint Committee to Consider the Mental Capacity Bill: ‘Northern Ireland is out in front, not out on a limb’.
Loss of freedom
The new approach of the Mental Capacity Bill is inescapably complex because it recognises that the law must permit the use of restrictions on the freedom of someone who has lost the capacity to make a decision (at least in certain circumstances). A loss of an internal mental capacity which grounds our ability to make a particular decision for oneself may mean a subsequent loss of freedom through the imposition of barriers on our freedom to do what we want. The Bill permits the state to intervene in the life of an individual, to detain them, to treat them against their wishes, to compel them—it permits the removal of freedoms others enjoy. It recognises that avoiding any discriminatory and disproportionate approaches taken by mental health law in the past means having sufficient safeguards, checks and balances, in place within the Bill. It is largely these safeguards which give the Bill its complexity.
The complexity of the Bill is also a reflection of the complex processes which have preceded its entry to the Assembly and a result of its necessary breadth of scope. The policy positions which lie behind it are the result of a blend of the diverse perspectives of many groups and organisations, including many voluntary sector organisations. The Bill potentially applies to us all and must be applied by all. It thus must seek to combine and address the needs, priorities and concerns of all: of children and young people, of parents, of carers, of children who are carers, and of older people; of people with significant mental health issues, of people with significant physical health issues, of people with a learning disability, of people with dementia; of doctors, nurses, social workers, of psychiatrists and surgeons, of police officers and prison officers and of those who regulate such professions; of lawyers, judges and government ministers and their officials, and of the experts responsible for turning the policy positions into legal draft. It must cohere with other laws, including domestic and international human rights law and the common law. In achieving its good, it must connect with so much of life, yet not frustrate the good achieved by other laws in those areas. The complexity of the Bill is in large measure a consequence of the positive engagement of civil society with the development of the statute back to the work of the Bamford Review.
Where the onus lies
The Bill has a complex structure in that, in seeking to protect the freedom of people who lack the capacity to make decisions, it does not in general bestow powers on others to control them. The basic approach of the Bill is to put the onus on the person who seeks to intervene in someone’s life to meet certain conditions if they plan to rely on the Bill for their action to be lawful. In short, the Bill does not in general give a legal power to X, to do Y to Z—which would perhaps have generated a more simple legal draft. Instead it says to A that if you want to avoid potential civil and/or criminal liability for your interference with the freedom of this person, then it is your responsibility to have safeguards B, C, D etc in place. How many safeguards must be in place, and which ones exactly, depends on the significance of the decision which may relate to a routine matter or might be something more serious. The more serious the proposed intervention, then the greater the safeguards that must be in place. The full symphony of safeguards which may be necessary is complex because the balancing of the rights and interests is complex. The range of instruments in play includes: tests which must be failed; principles which must be given due weight; criteria which must be met; things which must explicitly be considered; people who must agree; things which must be in place when certain people disagree; things which must be documented; and things which must be examined by the Tribunal or left to the Court. The complexity of the Mental Capacity Bill does not stem so much from the complexity of the situation it seeks to address, but rather from the complexity with which it seeks to strike the fair and just balance between countervailing rights and interests. Its basic architecture of increasing safeguards for situations of increasing seriousness is not itself complex. Nor are its requirements that complex compared to many other laws—the Data Protection Act for example. In bringing complex common law into statute, it is intrinsically an advance in legal clarity.
It will never be a perfect law, yet as it goes through the Assembly it will hopefully be improved upon. What is needed above all is continuing engagement by civil society in the ongoing refinement and development of the law, including in the development of the regulations which will flesh out the provisions of the Bill.
The Mental Capacity Bill has its origins in the aspirations of civil society in Northern Ireland and is the result of a prolonged process of deep engagement and consultation with civil society. It is an ‘equality Bill’ in that it removes discrimination against people with mental health issues or a learning disability who up to now have not always had their decisions respected when they have had the mental capacity to make those decisions. It is also a ‘liberty Bill’ in that it secures the right to make decisions for ourselves and to have the support we need to make those decisions—it enshrines the right to have responsibilities, to make decisions and be held to account for them. It is a ‘human rights Bill’ in that it seeks to constrain the state in interfering in the lives of individuals and their families and to provide protections for them when it does so. And at the heart of the Bill is a fundamental concern for the protection and preservation of the basic human dignity of a person who is unable to make a particular decision for her/himself. I find it hard to imagine a law which in the round could be more reflective of the values of the people of Northern Ireland.