Years before the Mental Capacity Act 2005 came into force, the proposed Mental Incapacity Bill, as it was then called, was criticised as raising serious human rights concerns involving degrading treatment, gross discrimination and threats to life and liberty. Among other matters, the legislation implied the following:
“• the abolition of the High Court’s jurisdiction to hear applications on the above-mentioned matters with the substitution of (and even then only in certain cases) the Court of Protection, an institution that affords none of the transparency, requirement of representation, ordinary appeal and procedural form demanded by a genuine court;
• arbitrary deprivations of liberty occasioned by insufficient procedural safeguards outlined in Winterwerp v Netherlands (1979) 2 EHRR 387 and the recent case of HL v United Kingdom (Application No 45508/99) (unreported) 5 October 2004; and
• easily alterable Codes of Practice to be used to specify matters that affect the law of homicide and assault thus suggesting an absence of procedural safeguards against abuse of fundamental human rights.”
(Laing, Jacqueline (2005), “The Mental Capacity Bill 2004: Human Rights Concerns” Family Law Journal 35, 137-143, at 138; see also (2004), “Mental Capacity Bill - A threat to the vulnerable” New Law Journal 154, 1165.)
Today’s revelation that Wanda Maddocks, 50, has been imprisoned by an increasingly secret and unaccountable Court of Protection comes as no surprise. Here was a woman who, fearful for her father’s safety, removed him from a care home to get legal advice in his presence. All the powers of bureaucracy were triggered to classify his daughter an offender and a kidnapper guilty of verbal abuse.
Five months imprisonment was ordered for contempt of court. Judge Cardinal said in his ruling that ‘there is a history of the family being difficult with the local authority’ and that Miss Maddocks knew she had been ordered not to interfere with her father. He said she had done so on a number of occasions. On one she took him from his care home to attend a court hearing. On another she took him to Birmingham to talk to a solicitor. The judge recorded that she also gave her father a wooden cross. This act in itself was regarded as suspect by the court.
Anxious to highlight what was being done to her father, Maddocks produced a document, in the words of the judge, ‘so as to identify him.’ This was said to be a ‘breach of Court of Protection rules.’ Demonising family members as a threat to the bureaucratic machine surrounding care of the elderly and imprisoning them for attempting save their loved ones from abuse highlights the shift that has taken place in English law. Combined with an increasingly secret judicial system, these alterations in law create irrational conflicts and contradictions, not merely for bona fide medical staff but for lawyers, family members and vulnerable people alike. A system of justice that aggregates to itself the cloak of invisibility soon evolves into a Leviathan of unaccountable, abuse of power.
1. Laing, Jacqueline (2008), “Food and Fluids: Human Law, Human Rights and Human Interests” in Artificial Nutrition and Hydration C. Tollefsen, ed., Springer Press, pp. 77-100
2. Laing, Jacqueline (2002), “Vegetative” State – The Untold Story” New Law Journal 152, 1272.
3. Laing, Jacqueline (2004), “Mental Capacity Bill - A threat to the vulnerable” New Law Journal 154, 1165.
4. Laing, Jacqueline (2004), “Disabled Need Our Protection” Law Society Gazette 101, 12.
5. Laing, Jacqueline (2005), “The Right to Live: Reply to the Chief Executive of the Law Society”Law Society Gazette 102, 11.
6. Laing, Jacqueline (2005), “The Mental Capacity Bill 2004: Human Rights Concerns” Family Law Journal 35, 137-143.
7. Laing, Jacqueline (2006), “A Certain Kind of Moral Scepticism and the Foundations of Human Rights” Law and Justice, 157, 39-53.
8. Laing, Jacqueline (2006), “The Prohibition on Eugenics and Reproductive Liberty” University of New South Wales Law Journal 29, 261-266.
9. Laing, Jacqueline (2008), “Information Technology and Biometric Databases: Eugenics and Other Threats to Disability Rights” Journal of Legal Technology Risk Management 3, 9-35.
10. Laing, Jacqueline (2009), “Los derechos humanos y la nueva eugenesia” 4, SCIO 65-81.
11. Laing, Jacqueline A. (2010) “On the Wrong Track” Solicitors Journal, 154, 2
12. Laing, Jacqueline A. (2012) “Not In My Name” New Law Journal, 162, 81
13. Laing, Jacqueline A. (2012) “Institutionalising Murder” Halsbury’s Law Exchange
14. Laing, Jacqueline A. (1994), “The Prospects of a Theory of Criminal Culpability: Mens Rea and Methodological Doubt” Oxford Journal of Legal Studies, 14, 57-80.
15. J. A. Laing (1990), “Assisting Suicide” Journal of Criminal Law, 54, 106-116.
16. Laing, Jacqueline (2013) “Justice and the Bindingness of Law (forthcoming)
17. Laing, Jacqueline A. (2012) “A Lethal Power?” New Law Journal, 162, 7438, p 1444 Laing, Jacqueline, (2012) “The Connection between Law and Justice in the Natural Law Tradition” Religion and Law, Theos: London, pp. 125-134
18. Laing, Jacqueline A. (2012) “Incentivising Death” Solicitors Journal, 157, 9
19. Laing, Jacqueline A. (2013) “Managerialising Death” Law Society Gazette,
20. Laing, Jacqueline A. (2013) “Infanticide: A reply to Giubilini and Minerva” Journal of Medical Ethics, 1-6
21. Laing, Jacqueline A. (1997), “Innocence and Consequentialism” in Human Lives: Critical Essays on Consequentialist Bioethics, eds. J. A. Laing with D. S. Oderberg. London, Macmillan, pp. 196-224
22. Laing, Jacqueline A. (1997), “Introduction to Human Lives” (co-authored with D.S. Oderberg), in Human Lives: Critical Essays on Consequentialist Bioethics, eds. J. A. Laing with D. S. Oderberg. London, Macmillan, pp. 1-12.
23. Laing, Jacqueline A. (2004), “Law, Liberalism and the Common Good” Human Values: New Essays on Ethics and Natural Law Edited by David S. Oderberg and T.D.J. Chappell, London, Palgrave Macmillan, pp. 184-216.