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.