Achieving Human Rights for People who Lack Capacity
by William Bingley*
In November 1999 a conference entitled “Mental Incapacity. New Millennium - New Law” was organised by the Law Society, Royal College of Psychiatrists and the Mental Health Act Commission. It concluded with the Lydia Sinclair Memorial Lecture delivered by William Bingley.
Introduction
Being invited to give this lecture is probably the greatest honour of my 16 years in mental health. It is also a daunting one - not only because it is almost impossible to do justice to Lydia Sinclair’s contribution but also because - being the last speaker after such a galaxie - I strongly suspect there is not much more to be said.
One of my major achievements in mental health was to recruit Lydia Sinclair to MIND in 1983 as its Legal Officer, and even that is a gross exaggeration - essentially she recruited herself. Her subsequent and distinguished career, which came to a grievously premature end with her death in May 1998, included the Legal Directorship of Mencap, private practice with Birnbergs and latterly Scott-Moncrief Harbour and Sinclair, membership of the Mental Health Act Commission and membership of the Law Society’s Mental Health and Disability Committee. All provided vehicles for her unique and invaluable contribution to, amongst other things, the field that is the focus of our attention today - and I think it is important not to forget that back in 1983 when she joined MIND - today and what it represents would have been unimaginable. What Lydia Sinclair was about was rights and especially the rights of particular groups too often denied them. My presentation today is about “Achieving Human Rights for People Who Lack Capacity” and I would like to intertwine what I saw as some of the characteristics I observed in Lydia Sinclair with the challenge ahead, as I see it, in implementing, consolidating and taking forward the rights of those described as lacking capacity.
In particular, what I would like to do is:-
a. Identify three characteristics of Lydia Sinclair’s work which I think are instructive for today;
b. Briefly address the challenge of ensuring that those who lack capacity do not become the new excluded;
c. Restate some of the fundamental political values which I think we should not forget especially as we review where we are today;
d. Briefly set out what the law can do and also look at the principles and values that should underlie not only legislation but maybe also our dealings with each other (including those whom we describe as lacking capacity); and
e. Make a plea for early action in relation to two areas.
What I will vigorously avoid is any studious philosophical examination of the strengths and weaknesses of the so-called “rights approach” to those who lack capacity. Some may take a rather narrow rights and responsibilities approach and, whilst not arguing that those who lack capacity do not have human rights,may suggest that in these particular circumstances such an approach is of limited value. I take a rather more imprecise view that human rights (as Chris Heginbotham and Tom Campbell said in Mental Illness, Prejudice, Discrimination and the Law) (1) are those rights which are the inalienable possession of every human being. This means that no distinction between individuals or groups is tolerable with respect to the enjoyment of human rights. I guess there is a difficulty - in a general sense - in that customarily the focus of the human rights approach and discourse is about increasing autonomy and some may argue that in relation to people who lack capacity, the room for this is much more limited. Whilst this is so, let us not forget that crucial part of the Law Commission’s report (2) (3.5) when it talks about the “functional” approach to capacity - “most people, unless in a coma, are able to make at least some decisions for themselves and may have levels of capacity that vary from week to week or even from hour to hour.”
Footnotes:
*Former Chief Executive, Mental Health Act Commission, Maid Marian House, 56 Hounds Gate, Nottingham NG1 6BG
(1) T Campbell and C Hegginbotham - Mental Illness, Prejudice, Discrimination and the Law (1991. Dartmouth: Aldershot).
(2) Law Commission, Mental Incapacity. Law Com No231 (1995. HMSO: London)
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