This site now acts as an archive only. For the latest news, opinion, blogs and listings on disability arts and culture visit disabilityarts.online.

Disability Arts Online

Crippen looks at the powers now held by the Court of Protection / 31 May 2010

There are growing concerns that under the Mental Capacity Act 2005 the Court of Protection has been handed sweeping powers without adequate scrutiny and openess. This departs from the general principle of open justice held by other courts.

Holding its cases behind closed doors, the Court has the power to order that people with severe learning difficulties are sterilised, undergo abortions or have life-support switched off. It can even impose “experimental” treatments on these patients without their consent.

The Act also gives the Court power to order procedures “where that procedure or treatment must be carried out using a degree of force to restrain the person concerned”.

Previously High Court judges were asked to rule whether people with severe learning difficulties in the care of health authorities and councils should undergo treatments if they believed it was in their best interests. However, these cases were held in public and could be reported by the media.

According to sources Sir Nicholas Wall, the President of the Family Division sitting in the Court of Protection, ruled last week that a woman with cancer of the uterus must receive treatment even though she has a phobia of hospitals and needles. He stated that this was because she has a learning difficulty and so was judged to be incapable of deciding on her own “best interests”.

He then allegedly ruled that doctors should be allowed to sedate the 55 year-old in her own home, using a drug hidden in a glass of squash, and then detain her in a ward following the essential treatment.

The case was only the second in the Court to be made public.

And yes, this is in England and the year is 2010!


 

Keywords: court of protection,learning disability,medication,mental health,psychiatry,

Comments

Vivien

/
4 June 2010

Further to my comments, I completely accept the concerns that the common law is changing to allow disabled people to undergo medical treatment without their consent and that disability groups have not been allowed to give their views about this major decision.

Vivien

/
3 June 2010

But in the case here, the woman is NOT seeking medical help for her symptoms. On the contrary, she is refusing it because she has a phobia of hospitals and needles and (according to the judge) does not understand that her refusal of treatment will cause her pain and death.

Usually, people with learning disabilities and mental health issues are refused medical care on the grounds that their quality of life is supposedly so poor anyway that they're not worth treating/saving. Obviously, in those cases, that is a clear abuse of medical powers. But is that true in this particular case? Are people on this forum really saying that the woman should be left to die rather than have life saving treatment given to her (admittedly against her wishes)?

Dawn Willis

/
3 June 2010

Colin's comment really does highlight the plight of people with disabilities, especially mental illness and learning disabilities.

I'm reminded of a comment I heard only two weeks ago from a young man who said "once you have a diagnosis of a mental illness, you are no longer the general public." He said this in a completely different context setting, we were discussing mental health in prisons, but quite honestly his quote goes across the board especially when it comes to the powers of the Mental Capacity Act 2005.

There is such immense power imbalance which can tragically mean that some people looking for help for their symptoms fear attening a GP purely because of the powers bestowed on practitioners by the Act.

/
3 June 2010

The powers over individuals lives, that are handed over to medical authorities once you have a label are immense - especially for people with mental health issues and learning difficulties. The level of services provided are so variable - because such little scrutiny is made of how mental health professionals use their powers. The media generally, support the idea that 'responsible' professionals should be allowed to take control - often against the wishes of family and friends involved in caring.

Pink PJ\'s

/
2 June 2010

It does seem that people with mental health issues and those with learning difficulties have fewer rights. We might have the Disability Discrimination Act (DDA) but we are more likely to be out of work and on benefits; be discriminated against and be the victims of hate crime; lose our freedom (be sectioned); lose our children (family courts who say our kids may be subject to future emotional neglect - arbitrary assumption impossible to challenge) and lose our benefits as DWP assess us as being fit for work under Atos ESA criteria - yet, not be offered work due to subjective decisions that we might become ill (as indeed anyone might).

The list goes on ... We might not be supported to receive direct payments / individual budgets, take up is low as gatekeepers (CPNS and social workers don't think we can manage these and statutory services would rather hang

on to their provider roles); not be given reasonable adjustments, and the rate of take up of Access to Work disproportionately low compared to those with other impairments.

Also, we are often denied treatment for other health problems - our mortality rate is significantly higher (as we die younger) as our physical health is often overlooked, and on top of that, we can be locked up by the police! (see Crippen's earlier blog).

I read some research a few years ago that found that one year after diagnosis people with severe mental health problems were more likely to also experience paranoia.... surprise!

Crippen

/
2 June 2010

I think what concerns most of us Crips is that this is another example of a 'thin end of the wedge' kind of legislation that has crept through without us being aware of it. Non accountable bodies being given absolute power over individuals - and one day that individual might be me or you!

Vivien

/
2 June 2010

Interesting article but I'm not sure I agree that the court's decision to sedate the 55 year old woman with learning disabilities was wrong. My understanding is that she has been judged not to have the capacity to understand that if she doesn't have the procedure, she will die.

So in this case, the courts and the hospital are trying to find the best way of ensuring she has treatment so she can continue to live. This is a bit different from the cases of forced sterilisations, abortions and life support machines being switched off. In those cases, the medical treatment is clearly not in the best interest of the patient, whereas undergoing treatment for cancer is.

For once, the courts and hospitals are trying to ensure that a woman with learning disabilities is given medical treatment to improve her quality of life - very different to the usual dreadful cases we hear of where people with learning disabilities have been refused treatment and left to die painful deaths (see Mencap's report 'Death by Indifference'). This is why Mencap are supporting the court's decision.

I suppose the real question is: do people with learning disabilities have the right to refuse medical treatment that would save their lives, even though they are not fully aware of the potential consequences of their refusal?

Arty Farty

/
1 June 2010

I've just been reading about this sort of thing in the 'Girl with the dragon tattoo'. And there was me thinking it was just fiction - goes to show that real life is even more bizzare and corrupt than anyone could invent.

Alyson Bradley via FaceBook

/
1 June 2010

I agree our natural selves often dismissed, so no wonder we withdraw and feel a need to defend at times, our of frustration, alienation, discrimination happens because far to often ignorance gets in the way of others being able or wanting to understand!

rich

/
1 June 2010

2 things.

1) many of us who campaigned against the mental capacity bill were alarmed that the bill would be used to give consent to professional abuse and would in fact protect the professional abuser.

2) It wasn't so long ago that a report was done on the amount of corruption that finds its source in the court of protection. I'm not so sure if anyone chose to sort that one out. But if i recall, the court of protection is largely famed for its involvement in matters of financial abuse. Many disabled people hand over their ability to look after their own money to someone through this court (powers of attorney and all that) and the people that the court confers power to are often not to be trusted - whether it be family, solicitors or other.

So, i would have thought that this court, if it has failed to respond to the report is not to be trusted with its protection of professionals and their abuse of disabled people.

Good to be vigilant.