Three Concepts of Liberty& their Application in Reforming the MCA

Prof Wayne MartinDirector

The Essex Autonomy Project

Data-gathering exercise:

o Assemble examples of the different ways in which your clients suffer a loss of liberty.

o Be specific.

o Think of cases where that loss of liberty seems ethically unproblematic.

o But let’s also think about cases where that loss of liberty might be ethically troubling.

Look beyond the law, and start with some philosophy …

What exactly do we mean by “liberty”?

Isaiah Berlin1909-1997

Negative Liberty

I am outside the cage … I am not in chains …

My freedom of movement and action is not restricted.

Positive Liberty

I lead my own life … I am am the author of my own life-story … I live by my own rules … [auto-nomos = autonomy]

My actions are genuinely the reflection of my own agency.

Application

What form of liberty is lacking in these cases?

Susan is working on the international space station.

Frank is detained in a police cell.

Louis is a heroine addict.

Anna joins a cult.

Nelson is freed from prison.

Berlin’s Question

In politics, (almost) everyone pays lip service to the importance of liberty. But the two concepts of liberty map on to rather different political commitments and programmes of government.

How would two political programmes of government differ if one was organised around a commitment to negative liberty and the other was organised around a commitment to positive liberty?

Is there a third form of liberty?

A Clue

Liberty is infringed not only when my movements and actions are actually limited, but when I live in circumstances where I am vulnerable to the exercise of arbitrary power.

Liberty 3

“The greatest başaw in Constantinople is merely a tenant of his head, liable to lose it soon as he speaks or acts in such a way as to cause the sultan offence.”

James Harrington, 1656

The Greatest Başaws in

Constantinople!

Sultan Suleiman the Magnificent!

Sultan Suleiman the Magnificent, miniature, 16th Century (Topkapi Collection)

How much liberty do those great başaws

really enjoy?

Persons living with a disability!

Colin the Magnificent,

Best-Interests Decision-Maker!

Sultan Suleiman the Magnificent, miniature, 16th Century (Topkapi Collection)

Summary

Liberty 1: I am not in chains.

Liberty 2: I am genuinely the author of my own life and actions.

Liberty 3: I am not vulnerable to the exercise of arbitrary power.

Application

Which of these concepts of liberty are relevant in your practice or in the lives of your clients who are living with disabilities?

Part II Application to the Reform of the MCA

Broad Consensus: the MCA needs to be revised.

• The House of Lords report found significant failures to live up to its ideals and apply its principles in practice.

• The UKSC case in Cheshire West created a crisis in the DoLS system, which was never fit-for-purpose.

• The MCA in its present form is not compliant with the United Nations Convention on the Rights of Persons with Disabilities.

• The Department of Health has asked the Law Commission to make recommendations for change.

Major International Human Rights InstrumentAdopted by UN General Assembly 2006“the newest human rights convention”

Ratified by the UK 2009& by the EU 2010

Establishes a set of human rights standards governing the treatment of persons with disability

Administered by the CRPD “treaty body” in Geneva

18

CRPD Article 12 – Equal Recognition Before the Law

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

Provisional proposal 12-2: section 4 of the Mental Capacity Act should be amended to establish that decision-makers should begin with the assumption that the person’s past and present wishes and feelings should be determinative of the best interests decision.

EAP Response to the Law Commission

The Law Commission’s Provisional Proposal 12-2 marks a step in the right direction, but cannot by itself solve the problem.

Why not?

Martin’s Roundabout Model of Decision-

Making

Use Your Decision-Making

Capacity!

DMC is a function that takes a variety of sometimes conflicting desires and wishes as inputs, and produces a singular determinate intention as output.

P

P’s Best-Interests Decision-Maker

Start from the assumption that the wishes and

feelings of P shall be determinative!

Helpful, but not sufficient!

“Special Regard”

(6) That person [the person making the determination of best interests] must take into account, so far as they are reasonably ascertainable

(a) P’s past and present wishes and feelings (and, in particular, any relevant written statement made by P when P had capacity);(b) the beliefs and values that would be likely to influence P’s decision if P had capacity; and(c) the other factors that P would be likely to consider if able to do so.

Initial Draft Text of the NI Mental Capacity Bill:

(6) That person [the person making the determination of best interests] must take into account, so far as they are reasonably ascertainable

(a) P’s past and present wishes and feelings (and, in particular, any relevant written statement made by P when P had capacity);(b) the beliefs and values that would be likely to influence P’s decision if P had capacity; and(c) the other factors that P would be likely to consider if able to do so.

Revised Text of the NI Mental Capacity Bill:

(6) That person [the person making the determination of best interests] must have special regard to, so far as they are reasonably ascertainable

(a) P’s past and present wishes and feelings (and, in particular, any relevant written statement made by P when P had capacity);(b) the beliefs and values that would be likely to influence P’s decision if P had capacity; and(c) the other factors that P would be likely to consider if able to do so.

Revised Text of the NI Mental Capacity Bill:

So what exactly is “Special Regard”?

-- Not defined in Bill

-- But we can get an idea by looking to other statutes

66 General duty as respects listed buildings in exercise of planning functions.

(1) In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

There should be a presumption in favour of the conservation of designated heritage assets and the more significant the designated heritage asset, the greater the presumption in favour of its conservation should be.... Substantial harm to or loss of a grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, including scheduled monuments ....grade I and II* listed buildings and grade I and II* registered parks and gardens....should be wholly exceptional.

PPS5; Policy HE9.1

Where a proposal has a harmful impact on the significance of a designated heritage asset which is less than substantial harm, in all cases local planning authorities should:

(i) weigh the public benefit of the proposal (for example, that it helps to secure the optimum viable use of the heritage asset in the interests of its long-term conservation) against the harm; and(ii) recognise that the greater the harm to the significance of the heritage asset the greater the justification will be needed for any loss.

PPS5; Policy HE9.4

1. The best-interests decision-maker should begin with the assumption that the person’s past and present wishes and feelings should be determinative of the best interests decision.

2. The decision made must comply with P’s past and present wishes and feelings unless there are compelling reasons to consider that doing so would have serious adverse consequences for P.

3.The greater the departure from P’s reasonably ascertainable wishes and feelings in respect of a decision to be made on their behalf, the more compelling must be the reasons for such a departure.

Alex Ruck Keene and Wayne Martin

EAP Draft Statutory Language for a Rebuttable Presumption Approach

Autonomy Summer SchoolJuly 2016

To register for more information go to:http://autonomy.essex.ac.uk

A three-day training course aimed at frontline professionals and researchers who face issues surrounding autonomy and mental capacity in the fields of medicine and psychiatry , social care and law.