I find it fascinating that the normalisation and nondiscrimination principles of 50 years ago should have led the law to abandon formal procedures whereas the normalisation and non-discrimination principles of today have led us to reintroduce them.
I just came across the most fascinating speech by Lady Hale on the Supreme Court website and I really recommend everyone with an interest in mental capacity law reads it. I won’t say too much about this as this is my third post today, but it’s absolutely fascinating to read Lady Hale’s reflections on changing attitudes to ‘legalism’ and ‘safeguards’ over the past fifty years, her thoughts on the House of Lords report on the MCA and the proposed Law Commission review of the DoLS.
I especially enjoyed her comments on the two Re X judgments as ‘a novel and interesting way to conduct procedural reform’. Her thoughts on the role of the Court of Protection and the potential role for the Mental Health Tribunals under DoLS were especially interesting as the suggestion of a Tribunal to adjudicate on MCA related issues was rejected by the Law Commission research led by Lady Hale in the 1990s, again by the government when the DoLS were introduced, and most recently by the House of Lords Committee on the MCA. Yet it’s a suggestion that keeps being raised. It’s a topic we’re quite interested in as part of our project on the Court of Protection and hope to have some discussions on next year. It’s also interesting to observe that Lady Hale is certainly aware of debates about the interpretation of Article 14 of the United Nations Convention on the Rights of Persons with Disabilities (on which, see this recent statement by the CRPD Committee). It appears that Lady Hale would be an advocate of ‘fusion law’ approaches – whereby the principles of the MCA underpin all mental health law.
Suffice to say, I am even more excited than I already was that Lady Hale is giving a speech at Cardiff Law School next week (attendance is free; the event is fully booked but there is a waiting list).