tag:blogger.com,1999:blog-7327718065135964598.post3621724273425734051..comments2023-08-10T15:02:51.259+01:00Comments on The Small Places: Allan Norman: Corollaries of the Right to Life: A Duty to Live or a Right to Die?Lucy Serieshttp://www.blogger.com/profile/07820866715125284389noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-7327718065135964598.post-86008542452682363462012-08-15T23:32:38.409+01:002012-08-15T23:32:38.409+01:00The MCA has effectively resulted in a category of ...The MCA has effectively resulted in a category of 'non persons' - beings stripped of rights to any self determination, if not endorsed by someone else- here the CoP or local authority. So even those who can voice their opinions quite clearly can be deemed to lack capacity on the basis of 'they do not understand what they voice' because they cannot articulate this according to prescribed ways determined by other 'learned' persons.<br /><br />It is curious with all the emphasis on this site and within some sections regarding 'safeguarding' and the anti 'families know best' stance that things that are actually a problem go virtually unnoticed. With 'non-beings' one engenders extremes of thought in society as to what to do with them.<br /><br />1. Over protection, because they need to be protected from themselves at all costs, or to be protected from others at all costs- with use of 'least restrictive methods' to be applied- which mean nothing to a non person.<br /><br />2. That such beings are entitled to little more with their lives than protection and direction of their life course by others- which sets them apart from the rest of us human beings. 'Society' incarcerates either literally or metaphorically and forget about them- job done.<br /><br />Is it wonder that cases like Winterborne occur more often than they should? <br /><br />Neither positions should give feelings of comfort to anyone who cares about other humans. We ourselves might imagine what might be our own fate should we be unlucky to loose capacity well before we die. LPA's might be drafted to favour a spouse or relative long before they are needed- by this time the relationships, under which the LPA was made, might have changed- but who can or will change the LPA? A non person has no rights.<br /><br />The whole MCA system is so hidden and geared towards enumeration of the views of judges and 'professionals' we cannot see the harm.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-27094412498328813812012-08-08T21:47:51.106+01:002012-08-08T21:47:51.106+01:00Very interesting post and one that throws up the i...Very interesting post and one that throws up the issue of the application of the MCA by CoP judges. It seems absurd that the MCA which was meant to protect some particular groups of people now effectively is about the views and powers of those 'who control the show'. <br /><br />It could be argued that loss of personal autonomy in decision making in E's case might reasonably equate with having a meaningless life. The value of human life is determined through the ability to find meaning through our own decisions and actions; as long as they do not infringe the rights and freedoms of others. Just as we do not choose to die, normally, we do not ask to be born- that is an accident of fate.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-66164749843354125002012-08-08T09:13:58.245+01:002012-08-08T09:13:58.245+01:00Morning! I think you're probably right that it...Morning! I think you're probably right that it was just poorly phrased, but I do get a bit jumpy about the common assumption that people's views and interests are always perfectly refracted through family and friends, even those that really love them. On the other hand, who would I want to make decisions on my behalf? My husband and sister (although categorically not anybody else I am related to, no matter how much I love them...). Have I made an LPA? No. Because it's expensive and time consuming and I'm very lazy. Like most people. Except I've got even less excuse because I know I should make one, but still haven't done it.<br /><br />I do wonder about a Representation system more like that in British Columbia, where there's less legal formality and much less cost in appointing a representative, and a much lower 'capacity' threshold. It still wouldn't be much use for somebody in M's condition though, unless she'd had the foresight to make one beforehand, but somebody like E could almost certainly make one. Besides, under the BC system the threshold for interfering with a person's choices is 'reasonableness', which strikes me as a much higher threshold than incapacity has become (surely, whatever you think of her decision, it was 'reasonable' not to want such an invasive treatment with such small prospects of success?).<br /><br />On the question of past expressed wishes and feelings though, I still think it's a tricky issue. People I've known who've had major disablements have initially felt their lives aren't worth living, but over time their values and expectations have changed as a result of living with the disability. That's a problem with advance directives in general though, and I don't have any solutions to the problem that our values shift over time. Perhaps the philosophers do! I just mean to dislodge a little the certainty that our past wishes should always determine our present treatment. Having said that, perhaps the court needs to dislodge a little the 'certainty' that the sanctity of life should always prevail.Lucy Serieshttps://www.blogger.com/profile/07820866715125284389noreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-5777317320235090392012-08-08T08:20:09.967+01:002012-08-08T08:20:09.967+01:00"I feel queasy about Gillon's assumption ...<em>"I feel queasy about Gillon's assumption that life-prolonging treatments are wasted on dementia patients whose family and friends think they would not have wanted this treatment. Sometimes family and friends might be in a position to 'know' this, but often they will not, and often (as in W v M) past comments will not speak to the precise circumstances a person finds themselves in. If people have made an advance directive or an LPA then that's one thing, but we most be cautious of assuming that everyone wants their fate to be determined by family and friends, and that everybody's family and friends are the best judges of their quality of life. Sometimes they will be, but Glover [sic] seems to assume they always will be."</em><br /><br />Lucy, I am not convinced Gillon has intended the assumption you attribute to him! What he argues for, forcefully, is personal autonomy, not the rights of family and friends. He criticizes the judgement for holding that "it would be wrong to attach significant weight to their previously expressed values, wishes, and views unless these had been expressed in a legally valid and applicable advance decision" while giving great weight to sanctity of life.<br /><br />In your paragraph above, you distinguish, on the one hand, an advance directive or comments speaking to the precise circumstances in which a person finds themselves, and on the other hand, having your fate determined by family and friends. Gillon is suggesting there is a third possibility - and I venture to suggest it is an extremely common one - that many of us have neither made an LPA nor addressed ourselves to precise future unknown circumstances, but still have a lifetime of expressed values, wishes and views that we would want respected. He is concerned that the judgement leaves no room - apparently no room whatsoever - for those expressed values, wishes and views to be given effect. His reference to family and friends - which I concede might have been better worded - is a reference to them as the sidelined custodians of the values, wishes and views of the patient.<br /><br />Not everyone wants their fate to be determined by family and friends, and not everyone's family and friends are the best judges of their quality of life - as you say. But many do, and many are, and more importantly many who want to determine their own fate rely on family and friends not to decide for them but to advocate for them. How are we, after this judgement, to protect the personal autonomy of the many?Allanhttp://www.celticknot.org.uknoreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-30428634695512954022012-08-07T10:59:49.681+01:002012-08-07T10:59:49.681+01:00Hi Allan,
Thank you for sharing this post - it&#...Hi Allan, <br /><br />Thank you for sharing this post - it's really thought-provoking and well argued. I definitely share your concerns about the effective reversal of the presumption of capacity, and the problems with what you call 'analytic' (as opposed to 'mimetic') advocacy in the Court of Protection. Indeed, that's a concern that extends throughout the procedural safeguards of the MCA into the role of IMCA's - nobody in the system is charged with making the best possible case for what P themselves wants, which is surely required for a fully adversarial testing of any interferences with their autonomy.<br /><br />I have to confess I'm slightly less comfortable with the resources issues being raised in the context of Court of Protection proceedings. If this was a public law case then resources would be a valid matter for the court to consider, but the Court of Protection is there to make substituted decisions between options available to a person, not to demand that additional options be made available or not available on public interest grounds. I suppose you could make the case that the kind of utilitarian 'public interest' arguments proposed by Glover have a place in public law, but perhaps not in the Court of Protection.<br /><br />I feel queasy about Gillon's assumption that life-prolonging treatments are wasted on dementia patients whose family and friends think they would not have wanted this treatment. Sometimes family and friends might be in a position to 'know' this, but often they will not, and often (as in W v M) past comments will not speak to the precise circumstances a person finds themselves in. If people have made an advance directive or an LPA then that's one thing, but we most be cautious of assuming that everyone wants their fate to be determined by family and friends, and that everybody's family and friends are the best judges of their quality of life. Sometimes they will be, but Glover seems to assume they always will be. <br /><br />We must also be cautious of taking an excessively medical view of what constitutes 'benefits' to health. There are many people with serious illnesses and disabilities who campaign to reject the presumptions of doctors and medical ethicists that they have poor quality of life (see, for example, the work of Harriet McBryde Johnson, and the Not Dead Yet campaign). <br /><br />On the Re E case, the argument I found most persuasive that forced treatment would not be in her best interests (capacity issues notwithstanding) was that there are no studies and no robust evidence that this kind of forced treatment works for people in E's condition. This is indirectly related to resources; that information on the lack of evidence is from the NICE guidelines (H/T to my colleague TH-D for that).Lucy Serieshttps://www.blogger.com/profile/07820866715125284389noreply@blogger.com