A spark of humanity flickered in the courts today as they lifted a cruel, ill-thought through and counter productive restriction on the lives of the mentally disabled. Like so many other cruelties, it flowed from the best of intentions.
Rosa Monckton and Dominic Lawson, and two other families of children with mental disabilities had challenged the provisions of the Mental Capacity Act that made it too hard for them and many other parents to protect their sons and daughters.
Their adult children were incapable of taking major decisions for themselves. The law as it stood, however, made it exceptionally difficult for patents to act as guardians, and take decisions for them. Or rather it wasn’t the law that stood in the way, but a code of practice, an anonymous civil servant had added to the 2005 Act, which stated that parents should retain control over the lives of adult children only ‘in the most difficult cases.’.
Writing about the case before the judgement, I said it went to the heart of a largely unacknowledged argument about mental disability.
On the one hand, people with mild or periodic afflictions have seen real advances. They are more likely than at any point in history to be treated with respect as autonomous adults. They are not lumped into a single category – ‘the handicapped’ – and dismissed as hopeless cases. Great and often justified opprobrium is visited on those who doubt their capacity to think for themselves and lead independent lives.
But the progress in lifting stigma and recognising neuro-diversity has had the consequence of leaving the severely disabled at the mercy of the austerity state.
For if attention is focused on people who can argue for themselves as articulate adults, or will recover from temporary bouts of illness, what about the people who will never be able to argue, because they can barely speak, and will never be able to live independent lives?
You only have to look around to know the answer. Fiscal conservatism and political correctness have marched in lock step. The more society has said the mentally handicapped are not handicapped – and indeed it is a mark of prejudice to even use the words ‘the mentally handicapped’ – the further services have been cut and the more bestial conditions in some ‘care homes’ have become.
In this intellectual climate, you can see why the law made it hard for parents to become guardians – or 'welfare deputies' to use the jargon – of adult children. It was not good enough to say their children could make terrible decisions. Parents habitually think their children make terrible decisions in their choice of friends, partners and careers. Why shouldn’t the same freedom to make mistakes apply to ‘the disabled’ as ‘the normal’.
Except in this case, the freedom was illusory. When parents are frozen out, decisions are not taken by mentally-disabled men and women, and it is a sick joke to pretend that they are. They are taken by social workers and local authorities who have been on the receiving end of vast cuts in central government support since the Conservatives came to power in 2010. Inevitably, local authorities’ overriding aim has to be to save money not provide the best possible care.
Mr Justice Hayden, the Vice-President of the Court of Protection, recognised the world as it is and brought a little honesty into the administration of the law. He dismissed the tight restrictions on the rights of parents to take decisions for their children. He agreed with Rosa Monckton and the other applicants that ‘the starting point in evaluating any application for appointment of a [welfare deputy] is by reference to the clear wording of the Mental Capacity Act.’ The code of practice which refers to ‘the most difficult cases’ should not be regarded as the starting point and 'requires to be revisited’.
During the case, lawyers for Monckton and her fellow applicants said that frequently social services departments did not know the children whose futures they were determining and, inevitably, funding was a more important factor than the child's best interests.
With a bit of luck the judgement on an obscure area of law no one except parents trying to fight to protect their children understands will herald a more realistic discussion of mental illness. The current happy-clappy celebrations of diversity need to give way to a picture of the true diversity in conditions that includes people who don’t need celebratory pats on the back but a lifetime of help.