The Daily Mail ran a story today about a court hearing before Hayden J to consider the case of a 17 year old girl from the Bristol area, who is considered at risk of travelling to an Islamic State area. Mr Justice Hayden has made the girl a ward of court, but mused aloud as to what would happen when she turned 18. According to press reports – and there isn’t a judgment so far as I’m aware, so this is pure ‘judicial musings’ – Hayden J said that there could be a place for the Court of Protection in these cases. Now, there is no mention whatsoever in the news reports that the young girl in question – or other cases of young people going to join ISIS – have particular disabilities or mental health problems. Yet, Hayden J is reported as saying ”Are those who have been brainwashed by radical forces capacitous to take decisions to leave the country? …It is something that had crossed my mind.’ He is further reported as saying ‘I have heard experts say those whose will is overborne lose the capacity to take decisions’, and that in some of these cases of young people travelling to join ISIS ‘Some … will have had their will overborne to such a degree that issues of capacity arise’.
As I said, there isn’t a published judgment and this is just judicial musings, but they’re very interesting nevertheless. The Court of Protection is a statutory court established by the Mental Capacity Act 2005. It can only make orders on the basis that the relevant person lacks mental capacity. The definition of mental incapacity comes in two parts. The first part is that a person must be considered ‘unable to make a decision’, defined according to a ‘functional test’ as unable:
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
Then there is a second part of the test, known sometimes as the ‘diagnostic threshold’. This part of the test means that it is not enough under the MCA for a person to be ‘unable to make a decision’ on the functional test approach to be deemed to lack mental capacity, they must be unable to make a decision because of ‘an impairment or disturbance in the functioning of the mind or brain’. There have been a number of cases recently in the Court of Protection where the court has found that people may not lack mental capacity, because even if they do have difficulty making decisions this could not be attributed to their disability as such but to other factors, such as a relationship with a predatory sex offender, a strongly held religious belief or a ‘somewhat challenging personality’. This means, in effect, that a person can fail the functional test of mental capacity but so long as they can argue that this didn’t fail it because of any impairment or disturbance in the functioning of the mind or brain, the Court of Protection has no jurisdiction to make an order in the person’s best interests.
What interests me about Hayden J’s comments, is the implied suggestion that these young people, in isolation from any suggestion whatsoever that they have particular disabilities or mental health problems, may satisfy the diagnostic threshold of the MCA. Hayden J is a well respected judge who has sat on several Court of Protection cases, so presumably he is well aware of the causal nexus arguments (as these cases are known). So is he saying that brainwashing is the kind of thing that could satisfy the diagnostic test?
There’s too much to be said about this really to dwell upon in this short blog post. The causal nexus arguments raise some really fundamental questions about what kinds of situations we want the state to be able to respond to. On one view, the state has no business interfering in situations where people are vulnerable for ‘extrinsic’ reasons, like brainwashing. For example, Suesspicious Minds recently wrote a really interesting blog post about about a decision by Baker J to extend an injunction preventing a father from contacting his daughter. The father in question sounded like a very frightening character, who had tried to have the girl’s mother murdered. But the girl was about to turn 18, and so the Family Court would no longer have any jurisdiction, so Baker J made the order under the ‘inherent jurisdiction’ of the High Court. Suesspicious Minds raises concerns (I think rightly) about the fact the girl was not independently represented in this case, but he also expresses concerns about the use of the inherent jurisdiction in relation to an adult who is vulnerable for extrinsic reasons:
There is nothing in the case to suggest that SO herself is a vulnerable person, that there are any inherent characteristics in her that are vulnerable – the reason she is ‘vulnerable’ is because of external things not because she herself has any inherent vulnerability. She is not a vulnerable person, she’s a person who happens to be vulnerable because of external factors. It might seem a trivial distinction, but I don’t think that it is.
Suesspicious Minds goes on to wonder what the limits are, to this jurisdiction to protect the vulnerable:
What prevents that line of thinking becoming that the State has the power to forcibly remove a woman from a violent partner? She has capacity to decide that she wants to be with that awful man, but she is ‘vulnerable’ because of the risks that he poses, so can the inherent jurisdiction decide that it would be best for her to be protected from that man? The powers are theoretically limitless – if she is considered vulnerable….
A twenty year old decides to have a relationship with a fifty year old who has had some criminal convictions including drug use. Her relatives disapprove and think that she’s vulnerable to getting used and ending up being broken hearted. Is she vulnerable? Can the State be asked to make injunctions to protect her?
A sixty year old man with a large fortune falls in love with a twenty five year old. The family are worried that he is being taken for a ride and that this girl is a gold-digger. Is he vulnerable?
I think these cases raise some really important, and quite metaphysically and politically challenging questions.
Firstly, the metaphysical – can we actually draw a neat line between ‘intrinsic’ and ‘extrinsic’ vulnerability? I’ve recently written a rather lengthy paper related to this topic – basically, I argue that the MCA is based on contradictory assumptions that on the one hand, ‘mental incapacity’ is an intrinsic property of the person and not their environment (that’s the reasoning behind the ‘causal nexus’ judgments’, and also the string of sex and capacity cases), but on the other hand that a person’s social environment can diminish their mental incapacity (e.g. the ‘undue influence’ cases) or can enhance their mental capacity (the support principle – I’d love to say ‘support cases’ but there aren’t really many of those…). The courts can’t decide whether mental capacity is an intrinsic property of a person, tightly linked to a person’s impairment, or an extrinsic property of the person and their environment, and flip flop between the two positions depending upon the political and practical consequences of deciding one way or the other.
What does connect all the MCA cases, at present, is that the person does have some kind of mental disability, and that’s what’s so interesting about Hayden J’s suggestion that ‘brainwashing’ could itself constitute a form of incapacity. It blurs the line between what Suesspicious Minds characterises as extrinsic vulnerability and something more intrinsic to the person.
There are (at least) two ways of looking at this blurred line. The first approach – let’s call it the disability rights approach – argues that all forms of mental incapacity are extrinsic because disability itself is fundamentally extrinsic – praying in aid the social model of disability. On the disability rights view, drawing a distinction between incapacity that does and does not involve an impairment is a form of disability discrimination, and should be prohibited – so we should junk the diagnostic threshold of the MCA. One could take this view and argue a civil libertarian line – that that state should leave everyone alone, regardless of the reasons behind their poor decisions or vulnerability (so, junk the functional test as well). Or you could use it to argue for expanded paternalism – that the diagnostic threshold should be abolished and the state should be able to intervene to protect vulnerable people like young people joining ISIS, women in violent relationships or rich people at risk from gold diggers, or people who have functional capacity issues for whatever reason. The problem with equality based arguments is they lack substantive content – do we want to use something like the MCA more expansively, to bring non-disabled people into its fold, or do we want to limit its use altogether?
Another view – which I’ll call the ‘lets pathologise everything’ view – could be that things like brainwashing and undue influence really are a ‘disturbance in the functioning of the mind or brain’, so we can keep the diagnostic threshold and we can apply it to young people joining ISIS and people in unhealthy relationships. To the best of my knowledge, these conditions aren’t in the DSM-V, but give it time and I’m sure someone will try! This also seems to be what Hayden J is hinting at, when he refers to what experts say. This approach would clearly not satisfy the disability rights perspective, and would also expand clinical power into areas which might be better dealt with as social (not medical) problems.
I’m not sure where I stand on this. I am certainly not (in case it’s not obvious) a fan of the ‘pathologise everything’ approach. And I do think that once you start trying to chop the world into extrinsic and intrinsic sources of incapacity and vulnerability you run into really thorny metaphysical problems. I can’t refute the argument that targetting ‘incapacity’ in people with a disability but not those without is discriminatory. But at the same time, I’m worried about the expansion of this jurisdiction. The fact is, if I had an 18 year old son or daughter who was planning to join ISIS, I’d want to do anything at all in my power to stop them. But I’m not sure that’s a good basis for lawmaking.