Temporality, disability and institutional violence: revisiting In re F

ABSTRACT

A recent suggestion of some disability legal scholars is to provide a non-discriminatory legal framework to regulate non-consensual medical and care interventions in relation to disabled people through adapting the doctrine of necessity. This article rejects this approach through a close reading of the leading decision on the doctrine of necessity in medical and care settings, In re F (Mental Patient: Sterilization) [1990] 2 AC 1. This decision confirms that any such suggestion for the application of the doctrine will impact disabled people differentially due to divergent legal constructions of temporality between disabled and able people. To use this doctrine in relation to ongoing disabled medical and care interventions the law constructs disabled people as being in a permanent state of mental incapacity. On the other hand, the doctrine of necessity constructs able people as temporarily mentally incapacitated from their usual state of autonomy, thus only requiring minimal medical and care interventions to return them to their prior state. Therefore, able people cannot, under this doctrine, lawfully be subject to similarly long periods of intervention and such a broader range of interventions. Application of the doctrine of necessity will thus exacerbate inequality of and violence against disabled people.

KEYWORDS:

• Disability law
• violence
• medical law
• sterilisation
• restrictive practices
• temporality

Acknowledgements

Thank you to Anita Stuhmcke, Fleur Beaupert, Nan Seuffert, Rosemary Hunter, Sarah Keenan and Scarlet Wilcock for their feedback on earlier drafts. Thank you to Josh Pallas for his research assistance.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Linda Steele is a Senior Lecturer and member of Law Health Justice Research Centre, UTS:Law, University of Technology Sydney and a Visiting Senior Fellow, Faculty of Law, Humanities and the Arts, University of Wollongong. Previously she was a Lecturer in the School of Law, University of Wollongong. Linda teaches in civil practice, mental health law and reproductive law, and has previously taught in criminal law and torts. She holds a B.A. (Gender Studies) and LL.B. (Hons) from University of Wollongong, a Masters of Public and International Law from University of Melbourne and a Ph.D. from University of Sydney. Linda’s research explores the intersections of disability, law and injustice, in the contexts of punishment, institutionalisation and violence. Linda has published in journals across the disciplines of law, criminology and gender and cultural studies. She has co-edited the following special issues: ‘Disability at the Peripheries: Legal Theory, Disability and Criminal Law’ (2014) Griffith Law Review, ‘Medical Bodies Gender, Justice and Medicine’ (2016) Australian Feminist Studies, ‘Normalcy and Disability: Intersections Among Norms, Law, and Culture’ (2017) Continuum: Journal of Media & Cultural Studies and ‘Disability, Rights and Law Reform in Australia – Recent Trends’ (2017) Law in Context.

ORCID

Linda Steele http://orcid.org/0000-0001-6944-7888

Notes

1 Steele (2016); Steele and Dowse (2016); Wadiwel (2017).

2 Steele (2014); Steele (2015); Steele and Dowse (2016).

3 de Bhailís and Flynn (2017); Flynn and Arstein-Kerslake (2014); Flynn and Arstein-Kerslake (2017); Gooding and Flynn (2015).

4 Gooding and Flynn (2015), p 258; see also Flynn and Arstein-Kerslake (2017), p 3.

5 Flynn and Arstein-Kerslake (2017), p 99.

6 Chandler et al (2016), pp 362–363.

7 Mendez (2013), p 8 [35]. Yet, elsewhere in the same document, the Special Rapporteur has stated that: ‘Only in a life-threatening emergency in which there is no disagreement regarding absence of legal capacity may a health-care provider proceed without informed consent to perform a life-saving procedure’: p 15 [66]; see also Grover (2009) [12]. Though, see subsequently: ‘I am concerned that domestic legislation generally allows for a very loose understanding of disability, of legal capacity, of guardianship and even of medical necessity. I believe very strongly that in many countries these provisions are the enabling legal environment where abuses take place’: Mendez (n.d.), p 152. See Series (2013) for discussion of these inconsistencies.

8 Carter (2006), p 161, see also pp 83, 147.

9 Chandler et al (2016), pp 370–371.

10 Chandler et al (2014), p 91.

11 See, eg Kafer (2013).

12 Chandler et al (2016); McSherry (2002).

13 Southwark London Borough Council v Williams [1971] Ch 734.

14 Chandler et al (2016), pp 365–366.

15 See, eg Mawani (2014); Mawani (2015); Veitch (2007).

16 Mawani (2014), p 69.

17 Mawani (2014), p 71.

18 Mawani (2014), p 69.

19 Loughnan [1981] VR 443 at 448 (Young CJ and King J).

20 In re F [1990] 2 AC 1 at 75 (Lord Goff of Chieveley).

21 In re F [1990] 2 AC 1 at 75 (Lord Goff of Chieveley).

22 Chandler et al (2016), pp 362–363.

23 Puar (2009), p 166. See similarly in the specific context of disability: Soldatic (2013), p 11.

24 For an overview of this argument, see Goodley (2014).

25 See, eg Erevelles (2011); Tremain (2005).

26 See, eg Kafer (2013); Kim (2016).

27 Kafer (2013); Kim (2016); Pyne (2017); Rice et al (2017); Soldatic (2013).

28 Rice et al (2017).

29 Kafer (2013), p 25. This has temporal dislocation of disabled people has striking similarities to the cultural and political positioning of Indigenous people as falling outside of modernity. See, eg Razack (2015).

30 Kafer (2013), pp 2–3, 31.

31 Kafer (2013), p 27 (emphasis in original).

32 Kafer (2013), p 28. See also Spivakovsky (Forthcoming).

33 Keywood (2001), p 193.

34 Steele (2017), pp 7, 11.

35 Kim (2016). See also Spivakovsky (Forthcoming).

36 In re F [1990] 2 AC 1.

37 See however Lord Griffiths who was of the view that such approval should always be sought. In re F [1990] 2 AC 1 at 70–71 (Lord Griffiths).

38 See, eg In re F [1990] 2 AC 1 at 57 (Lord Brandon of Oakbrook).

39 Note also on the first appeal to the Court of Appeal the judges agreed on ‘best interests’ with two of the three (Neill LJ and Butler-Sloss LJ) explicitly identified necessity as relevant though not articulating a doctrine of necessity as such: In re F [1990] 2 AC 1 at 18 (Lord Donaldson of Lymington MR); 32 (Neill LJ); 42 (Butler-Sloss LJ).

40 In re F [1990] 2 AC 1 at 52 (Lord Bridge of Harwich).

41 In re F [1990] 2 AC 1 at at 68 (Lord Brandon of Oakbrook).

42 In re F [1990] 2 AC 1 at 69 (Lord Griffiths).

43 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

44 In re F [1990] 2 AC 1 at 76–77 (Lord Goff of Chieveley); 83 (Lord Jauncey of Tullichettle).

45 In re F [1990] 2 AC 1 at 53 (Lord Brandon of Oakbrook).

46 In re F [1990] 2 AC 1 at 8–11 (Lord Donaldson of Lymington MR).

47 In re F [1990] 2 AC 1 at 53–54 (Lord Brandon of Oakbrook).

48 Hunter (2017), p 172.

49 In re F [1990] 2 AC 1 at 53 (Lord Brandon of Oakbrook).

50 Kafer (2013), p 5.

51 See similarly Lord Goff’s opening description of L in his subsequent judgment on restrictive practices and the doctrine of necessity: ‘The respondent, Mr. L, is 48 years old. He is autistic, and is profoundly mentally retarded. He is unable to speak, and his level of understanding is severely limited. It follows that he has always been incapable of consenting to medical treatment. He is frequently agitated; he has no sense of danger, and has a history of self-harming behaviour’: R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458 (Lord Goff).

52 Keywood (1995), p 131.

53 In re F [1990] 2 AC 1 at 53 (Lord Brandon of Oakbrook).

54 In re F [1990] 2 AC 1 at 53 (Lord Brandon of Oakbrook).

55 In re F [1990] 2 AC 1 at 53 (Lord Brandon of Oakbrook).

56 Keywood (2001), p 185. See similarly Lord Goff noting in his subsequent judgment on restrictive practices and the doctrine of necessity that: ‘From the age of 13, for a period of over 30 years, he was a resident at the Bournewood Hospital’: R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458 (Lord Goff).

57 See similarly critiques of ‘Ashley X’ sterilisation and associated ‘treatment’: Kafer (2013), ch 2; Pyne (2017).

58 In re F [1990] 2 AC 1 at 53 (Lord Brandon of Oakbrook).

59 In re F [1990] 2 AC 1 at 53 (Lord Brandon of Oakbrook).

60 In re F [1990] 2 AC 1 at 53 (Lord Brandon of Oakbrook).

61 See a similar observation made in the context of Re W [PPPR] (‘Re Williams[PPPR]’) (1993) 11 FRNZ 108, a New Zealand decision on involuntary treatment of a pregnant woman with mental illness by Hunter (2017), p 174.

62 Keywood (2001), p 185.

63 Keywood (2001), p 192; see also Steele (2008).

64 In re F [1990] 2 AC 1 at 52 (Lord Brandon of Oakbrook).

65 In re F [1990] 2 AC 1 at 54 (Lord Brandon of Oakbrook).

66 In re F [1990] 2 AC 1 at 54 (Lord Brandon of Oakbrook).

67 See, eg In re F [1990] 2 AC 1 at 52 (Lord Bridge of Harwich). See also Series (2015a).

68 In re F [1990] 2 AC 1 at 34 (Neill LJ).

69 In re F [1990] 2 AC 1 at 54 (Lord Brandon of Oakbrook).

70 In re F [1990] 2 AC 1 at 54 (Lord Brandon of Oakbrook).

71 In re F [1990] 2 AC 1 at 54 (Lord Brandon of Oakbrook).

72 See, eg Keywood (1995); Keywood (2001); Steele (2008); Steele (2014).

73 In re F [1990] 2 AC 1 at 71 (Goff LJ).

74 Chandler et al (2016), p 368. See, however, the subsequent European Court of Human Rights appeal decision which found the use of doctrine of necessity breached HL’s human rights and hence prompted legal reform resulting in the Deprivation of Liberty Safeguards (‘DOLS’). Significantly, the DOLS applied to restrictive practices and would not have applied to sterilisation. See, eg Williams et al (2014).

75 Williams et al (2014), p 642 (emphasis added).

76 See also Lord Donaldson who stated that using the common law to ‘fill gaps’ in the law was ‘one of the most important duties of judges’: at 13 (Lord Donaldson of Lymington MR). For a critical discussion see Steele (Forthcoming).

77 Steele (Forthcoming).

78 Hall (2014).

79 Steele (2014).

80 In re F [1990] 2 AC 1 at 75 (Lord Goff of Chieveley). Lord Jauncey of Tullichettle agreed ‘entirely’ with Lord Goff: In re F [1990] 2 AC 1 at 83 (Lord Jauncey of Tullichettle).

81 In re F [1990] 2 AC 1 at 72–73 (Lord Goff of Chieveley).

82 In re F [1990] 2 AC 1 at 72 (Lord Goff of Chieveley) (emphasis added).

83 In re F [1990] 2 AC 1 at 72 (Lord Goff of Chieveley).

84 In re F [1990] 2 AC 1 at 74 (Lord Goff of Chieveley) (emphasis added).

85 Keeling (2017), p 85.

86 In re F [1990] 2 AC 1 at 74 (Lord Goff of Chieveley).

87 In re F [1990] 2 AC 1 at 74 (Lord Goff of Chieveley) (emphasis added).

88 In re F [1990] 2 AC 1 at 74–75 (Lord Goff of Chieveley).

89 In re F [1990] 2 AC 1 at 75 (Lord Goff of Chieveley).

90 In re F [1990] 2 AC 1 at 75 (Lord Goff of Chieveley).

91 In re F [1990] 2 AC 1 at 76 (Lord Goff of Chieveley) (emphasis added). Interestingly, on the first appeal (to the Court of Appeal) notes the difference of ‘time scale’ between the temporarily and permanently incapable of consenting, but went on to note the problem of simply extending the notion of ‘emergency’ stating that ‘I do not think that the law does or should regard adults who are in the position of F, simply as permanent emergency cases. In an emergency a doctor has little time to ponder the choices available.  … the doctor has more time and far more is required of him by the law’: In re F [1990] 2 AC 1 at 17 (Lord Donaldson of Lymington MR).

92 Stuhmcke (2014), p 294.

93 See, eg Keywood (2001); Steele (2008); Steele (2014).

94 See, eg Beaupert (2018); Clough (2017); Gooding (2017).

95 A comparison might be drawn between my critique of dis/abled ‘fracturing’ of time in In re F and the feminist critique of the gendered fracturing of time in relation to criminal defences of self-defence and provocation. In both contexts, the fracturing of time enlivens and legalises violence.

96 Kafer (2013), p 63.

97 Beaupert (2018)

98 This point warrants further exploration, including as relates it to a broader, emerging observation in disability theory about the politics, materialities and violence of the process of incapacitation itself. See, eg Puar’s work on ‘capacity’ which takes a broader, geopolitical approach to the concept beyond ‘mental’ or ‘legal’ capacity’ and which might provide new critical openings to enrich legal critiques of law’s harnessing of mental capacity: Puar (2017).

99 Keywood (2001), p 192.

100 In re F [1990] 2 AC 1 at 76 (Lord Goff of Chieveley) (emphasis added).

101 Williams et al (2014), p 660, see also pp 646–647.

102 In re F [1990] 2 AC 1 at 77 (Lord Goff of Chieveley).

103 In re F [1990] 2 AC 1 at 77 (Lord Goff of Chieveley).

104 Kafer (2013), p 6.

105 Žižek (2008), p 6 (emphasis in original).

106 For a discussion of some of these, see Ramcharan et al (2009), pp 10–14; see generally Fabris (2011).

107 Golder (2012), p 107.

108 Golder (2012), p 95.

109 Golder (2012), p 95; Steele (2016).

110 Nixon (2013).

111 Berlant (2007). On disability and slow death see Puar (2017).

112 See, eg Nixon (2013); Veitch (2007).

113 Žižek (2008), p 10.

114 Minkowitz (2017).

115 Flynn and Arstein-Kerslake (2014); Flynn and Arstein-Kerslake (2017); Gooding and Flynn (2015); de Bhailís and Flynn (2017), p 11.

116 Thank you to Fleur Beaupert for this point.

117 See also Minkowitz (2017); Series (2015a); Series (2015b).

118 See, eg Margaret Hall’s work on the inherent jurisdiction as a ‘vulnerability’ jurisdiction: Hall (2014); cf Clough (2017).

119 Campbell (2009).

120 Kim (2016), p 234.

121 Clare (2017).

Additional information

Funding

This work was supported by a 2016 Faculty Challenge Grant, Faculty of Law, Humanities and the Arts, University of Wollongong, Australia.