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I think it's fair to say that Lord Sumption and I occupy pretty distinct places on the economic and political spectrum. I for one wouldn't describe an academic's salary as being equivalent to being broke (unless you're hourly paid, in which case fair enough), however...
His fascinating Reith Lecture on 'Law's Expanding Empire' did resonate for me with a pattern we are seeing under the Mental Capacity Act 2005 bbc.co.uk/programmes/m00…
That pattern is the increasing recourse to law that not long ago would have been viewed as beyond the legitimate reach of 'the state' and beneath the radar of the courts.
The best examples I can think of are cases about things like trimming pubic hair bailii.org/ew/cases/EWCOP… or what they should eat. Outside of capacity law we might look to the smoking-in-hospitals and junk-food-in-hospitals litigation brought by patients.
Sumption argues that many of these issues would previously not have come before the courts. This reflects a mindset that law should provide answers to problems that previously would have been considered personal or clinical judgment, or fall within private boundaries of the home.
I think this is probably true. I think that we are litigating things that in the past would have seemed utterly bizarre to judges and indeed society in general. Hedley J and Munby LJ also make the same point in The Modern Judge, but are less critical of this trend.
Hedley J suggests this is because of increasing social and religious diversity; you need an independent arbiter to resolve disputes because we don't all have shared values to revert to in order to resolve them.
Perhaps that's the inverse of Sumption's critique of trying to impose moral and social conformity through law. I suspect society has always held diverse views, but these are less frequently suppressed these days.
But whereas Sumption's conclusion is that these are matters that are properly left to personal judgment or the political process, that logic often doesn't apply in capacity law.
Once you've concluded some people can't make 'personal judgements', you get a power vacuum, and Parliament can't decide what people eat for breakfast or their pubic grooming regimes.
So what we end up with is a process of trying to work out *whose* view fills that power vacuum because we've ousted the person themselves. If you rule out the courts, then how else is this resolved? This is a serious, not rhetorical, question.
The whole 'nobody wants to go to court' schtick that characterised debates on the 2019 amendments to the MCA doesn't address three-way power conflicts between disabled people, their families and professionals.
I think Sumption has raised a serious concern about how we use law today, but it doesn't answer the question of what else we could do when these very real conflicts break out.
Pubic hair grooming, smoking, how many donuts you eat, all appear trivial matters until somebody imposes a regime that takes away those choices, or comes at your nether parts with a razor without consent.
I'd love to hear what others think about this conundrum. Are the courts the best way to resolve these issues, and if not... then what is?
I'm going to stick another question on the end here, which is whether and how far the CRPD's 'will and preferences' based approach resolves this. In many cases it is equally disputed what a person's 'will and preferences' are. So how should this be resolved?
