This article by Sue Reid appeared in the Daily Wail last month ...
Standing at the front of a wood-panelled room at the Royal Courts of Justice, the mother in a smart dark suit cried as she told the shocking story about the daughter she loves. The 21-year-old girl, from a middle-class family in the English Home Counties, has a learning difficulty and keeps getting pregnant. Because of her hapless lifestyle, the girl already has one small son, and at the time of the court hearing this spring she was about to give birth to a second child, a daughter.
Elisa, as we will call the mother, told the judge that her daughter understood little of how babies are made. Although sexually mature, she was unable either to exercise restraint or comprehend that if she continued to have children they would be adopted.
Elisa asked the judge if her daughter could be sterilised.
“She doesn’t see anything wrong with her behaviour. She hasn’t got the capacity to realise the consequences of her actions. The problem is, if she has any more children, we as a family can’t make a commitment to bring them up,” she said.
Any future children would be removed from her for adoption. She doesn’t understand that she won’t ever see those children again even though she says: “I am their mummy.” She doesn’t understand that they will get a new mummy. She thinks she will be able to see them at Christmas, birthdays and weekends.
Elisa’s heart-breaking plea was made at the Court of Protection (CoP), a little-known body which operates in the strictest secrecy. Under the laws of the Mental Capacity Act of 2005, it makes decisions for people deemed to lack the intelligence to do so for themselves. People like Elisa’s daughter or others facing life-and-death dilemmas. The judges can compel these vulnerable souls to undergo surgery, take part in medical experiments, use contraception or have abortions. They can decide if a life-support system is switched off, where a person lives or with whom.
In one incident, the court ruled that a man with a low IQ should be banned from having a sexual relationship.
And while it might seem essential to have a court taking these kinds of decision, the secrecy with which it operates is considered by many akin to state oppression of the kind described in George Orwell’s novel 1984. For, equally controversially, the CoP judges can authorise what are called Deprivation of Liberty Safeguards. They allow council or NHS officials to restrain someone in a hospital, care home, or re-training facility for as long as the State deems it to be ‘in their best interests’.
John Hemming, the Liberal Democrat MP, is campaigning for the Court of Protection to be more open. He says there are hundreds of people who are having their liberty taken away or their rights trampled on by this court — without the outside world knowing.
Only last week a desperate mother asked the court to allow the life support machine keeping her brain-damaged daughter alive to be switched off. As is standard in the court, the daughter was referred to only by a letter ‘M’ to protect her identity. But 24 hours later, the judge issued an unprecedented draconian injunction stopping any discussion or debate about the issues involved — for the rest of M’s life.
The ruling barred the media from approaching a list of 65 people who play, or have played, some part in M’s life. It stifled any reasonable debate about the moral dilemmas and stopped her family publicly expressing their views on what should happen or why. Furthermore, it threatened anyone who made any such inquiries, apart from going to M’s solicitors, with prison or the seizure of their assets. The press was barred from going within 50 yards of four addresses where M or her family have lived in the past or now.
This type of injunction has never been used before in this type of case. It is normally employed to protect vulnerable women from violent ex-partners or scientists being injured by animal rights protesters. And it follows growing concern about the widespread use of injunctions by another group in society — the rich and famous — to prevent scandalous details about their lives being published. In the past few weeks there have been almost daily landmark rulings by judges who are using the courts to develop a judge-made privacy law in this way.
But with the CoP, the mania for secrecy has taken an even more sinister turn, for it involves decisions made by an unaccountable court acting over the life — or death — of an individual. And it is stopping legitimate public discussion of what is a vital legal, moral and social issue.
As Mr Hemming said, “Anyone who asks questions of anyone in the case, whether they answer or not, risks going to jail. This is about the life or death of a human being and I don’t think it’s acceptable for this to happen. There is a real issue about the Court of Protection operating in a secretive bubble.”
The case, however, allowed a rare glimpse into the workings of the CoP, which has been hugely criticised since it was established in 2007 after a change in the mental health laws. The criticism reached a crescendo in the case of Steven Neary, an autistic 20-year-old, who was removed from his father Mark’s care by Hillingdon Council in London.
In December 2009, Steven’s 51-year-old father became ill with flu. Mark has looked after his son at the family’s house in Uxbridge, Middlesex, all his life. But he asked the council for some help with Steven for just a few days until he recovered. Steven went into the council’s care for three days — to a home he had stayed at before, when his father needed a rest. Steven even knew some of the staff. Autistic people find it easier to function in a familiar environment and Mark thought all would be well.
But after the first day in respite, the staff said they were ‘unable to cope with Steven’. He was upset at being parted from his father. He had a habit of tapping staff on the shoulder to attract their attention, just as he did to Mark, and kept asking when he was going home. Every time a shoulder-tap happened it was put down in the respite centre’s daily log as an ‘assault’. When Mark went to collect his son after three days, many such ‘assaults’ had occurred.
The staff announced that they were ‘retaining’ Steven for ‘assessment’. No, his father couldn’t take him home. The boy was transferred to an ominously named ‘Positive Behaviour Unit’ run by the council, in another part of West London. There, the staff believed they could alter Steven’s behaviour and tone down his autistic tendencies.
For Mark, the battle lines were drawn. He knew his son well, and how to deal with him. He knew that his favourite TV character was Mr Bean, and in particular the episode when Mr Bean puts the Christmas turkey on his head. Mark remembers one Christmas when they laughed at the turkey episode on TV. But then Steven disappeared to the kitchen. His father knew what his son was thinking. It was instinctive, after a lifetime of looking after an autistic child. He followed him out, and just stopped him putting the family’s own freshly roasted Christmas bird on his head.
Such behaviour would have flummoxed the Positive Behaviour Unit, where staff soon declared that Steven lacked insight into his own behaviour (a classic trait of autism), and might physically harm others, including children or animals. Steven became so unhappy that one night in April 2010 he escaped in his pyjamas, met a vicar on the street, removed the vicar’s glasses and threw them on the ground.
Before long, the local press had heard of the situation, and Mark co-operated with them, telling his side of the story — and explaining he was determined to bring his son home permanently so he could look after him. The story swiftly spread all over the internet. Hillingdon Council was equally determined that Steven should remain in professional care. The council applied successfully to the Court of Protection for a Deprivation of Liberty Safeguard or DOLS order. Steven was allowed home for only two hours at a time, and was barred from staying overnight. Two council workers watched over him night and day.
His father pleaded with the council to reverse this decision, but it refused. He explained to them: “I am not saying there are not difficult moments with Steven, but I have managed for years without any real problems. I know how to stop him becoming anxious, which leads to him lashing out. I know my son.”
Things hit rock bottom in July 2010, when Hillingdon Council told Mark that Steven would never be allowed home. He was to be moved to a secure centre in another part of the country because of his challenging behaviour.
Mark has since explained that his son is sociable, and will shake hands, although he is not good at answering questions unless they are about his pet subjects, such as Mr Bean or the pop group Abba. If he is in a strange environment he will get nervous, and sometimes he has kicked out or tried to pull a visitor’s fingers. Mark kept a log of such incidents, noting that in four months up to the time Steven went into respite care, there were just 12. Once he was away from home, Hillingdon Council recorded 306 over seven months — a dramatic deterioration in his behaviour.
His father explained during this stressful time: “As he does not like being there, he gets agitated and anxious, and they have reported aggressive behaviour. Being forced into a situation he does not like and finds difficult to understand means he gets upset and this is used as evidence against him. Prior to going to the treatment unit Steven had quite a good life, content with his routines and activities such as swimming or watching the TV”.
Mark Neary was not going to give up. He hired a lawyer and decided to take on Hillingdon Council as well as the Court of Protection which issued the restraining order on Steven. A Facebook campaign orchestrated by Mark followed. It was brilliantly successful and thousands signed up, saying that the father and son should be reunited. Mark was finally allowed to have his say at the CoP last December, when an interim order was granted to allow Steven back home for Christmas. Future hearings will decide on whether Hillingdon Council acted appropriately, and rule on the long-term care of Steven.
So why wasn’t Mark’s case subjected to the usual secrecy that the Court of Protection insists on? Because it was too late — by the time the CoP was involved, the local newspaper had already reported the situation, Mark and Steven’s names were all over the internet and the CoP was forced to lift its ban on publicity.
But if this hadn’t happened the probability is that the world would never have known about Steven, who could be locked up in an unsuitable institution and denied his father’s love.
In Elisa’s daughter’s case, the reporting restrictions were also allowed to be partially lifted after huge public interest. But Elisa is not her real name and she is not allowed to talk about the case even to her MP — if she does so, she faces imprisonment.
This, then, is the very dark and Kafkaesque world of CoP.
Earlier this year, a 41-year-old man living at a council home, and in a relationship with another man which he said made him happy, was barred by the Court of Protection from ever having sex with any human being again. The intimate details of the life of ‘A’ and his partner came to light at the CoP after his local council said his ‘vigorous sex drive’ was inappropriate and that with an IQ of just 48 — the average is 100 — he did not understand what he was doing.
The judge said the council should place ‘A’, who believed that babies were flown in by a stork or found under a bush, under ‘close supervision’ to stop him having a sexual relationship. He will be followed everywhere for the rest of his life by an orderly at the home, unless he is alone in his bedroom.
There may be some justification in the decision, but equally there may not. Whatever the case, it is such an extraordinary order that it surely deserves public scrutiny.
The Court of Protection always insists it is acting in the best interests of the individual concerned, but there is an increasing number of people who now think its secretive methods have no place in modern Britain.
The GOS says: I think we need just to quote a couple of things again: “He will be followed everywhere for the rest of his life by an orderly”, and “the judges can compel these vulnerable souls to undergo surgery, take part in medical experiments, use contraception or have abortions. They can decide if a life-support system is switched off, where a person lives or with whom”.
This is not, you understand, in some Taliban enclave in Afghanistan, nor yet in 1930s Russia, or North Korea or a redneck survivalist death-cult in New Mexico.
This is in Great Britain, one of the leading countries of the supposedly liberal and enlightened Western civilisation.
Work that out, if you can. I'm buggered if I can.
either on this site or on the World Wide Web.
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