Mention the name Enoch Powell, and within minutes someone will reference his ‘Rivers of Blood’ speech. Arguably, and sadly, that speech did nothing to change the marching speed of the progressives.
It was not the only speech Enoch made, another, that had a dramatic effect on the British social history, is rarely mentioned.
Enoch was the Father of ‘Care in the Community’- indeed it might come as a surprise to you that this iconic piece of legislation, much beloved of the Left leaning liberals, was actually the result of determinedly right wing, heartless Tories, messing with the NHS.
Announcing the first wave of mental hospital closures at the Conservative Party Conference in 1961, Enoch Powell, then health minister famously evoked the brooding “water towers and chimneys” of the old asylums:
[I] imply nothing less than the elimination of by far the greater part of this country’s mental hospitals as they exist today. This is a colossal undertaking [...] There they stand, isolated, majestic, imperious, brooded over by the gigantic water-tower and chimney combined, rising unmistakable and daunting out of the countryside – the asylums which our forefathers built with such immense solidity to express the notions of their day.
I doubt that any other ‘notion of the Victorian day’ received as many hand wringing column inches as the many and varied tales of unmarried Mothers who had been incarcerated for life following the birth of a baby. As the Civil Rights movement and the Philosophy of Personalisation gathered pace throughout the 1960s, the notion that anybody could ever, ever, have thought they had the right to infringe on human dignity and self worth to the extent of dictating whether or not they could enjoy such a basic human pleasure as Sex took centre stage. It was unthinkable to the new waves of Social Workers emerging from the red brick universities.
Fast forward 50 years, and we are once again locking up the sexually promiscuous. There may even be some merit in this notion – why should children be born to those who have not sufficient intellect to care for them runs one argument. However, where this argument had merit in the days pre-1960 when birth control was not an option easily available, and the moral argument was strongly bound up in the wishes of a society that still trooped out to worship on a Sunday morning and avow their adherence to the bible, today we are using the ‘extension of autonomy’ argument to achieve the same result.
The ‘extension of autonomy’ argument, for those who have not been around this blog long enough to get bored to tears with my obsession with the Court of Protection, is the means by which the Labour Government passed the Mental Capacity Act 2005, a Machiavellian piece of legislation which allows the government to make decisions on behalf of those they consider are making unwise ‘choices’ in life. (Beware smokers and the obese….!)
Yes, they have been at it again. Deciding who can have Sex and who can’t.
As with the earlier ‘Too stupid for Sex’ case, the decision turns on the ability to understand the health risks, rather than on moral grounds or the risks of pregnancy.
Health authorities and councils have previously asked judges to force women to take contraception and undergo surgery which would prevent conception – but in the latest case, Mr Justice Hedley was asked by a local authority to declare that a young woman, referred to only as H, lacked mental capacity to consent to sexual relations. He ruled that:
Moreover, she clearly had difficulty saying no but that is not the same as understanding that she had a choice: she understood that but had found it very difficult to practice.
In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse?
It is plain from the judgement that ‘H’ had a long and extensive sexual history that involved group sex, animals, and were possibly exploitative. At least one man had been convicted of attempted rape. However, Mr Justice Hedley has ruled that this was by choice, she ‘had difficulty’ in saying ‘NO’ but had the capacity to understand the concept.
You might think that this should have been the end of the case. You may wonder why ‘H’ is today under lock and key, deprived of her liberty, banned from having sex to the extent that should she do so, any man would automatically be charged with rape. You may even pause to wonder what is the difference between being locked up in a Victorian asylum for the moral sin of having sex whilst unmarried and being under lock and key in a Northern town for having sex whilst unmarried. Indeed, thanks to this ruling, ‘H’ will never be able to marry, since consent to having sexual relations is a requisite part of the marriage act.
To so ponder would be to underestimate the skill of the legal wordsmiths.
For the consultant psychiatrist, Dr. Xenitidis, extended his investigation into ‘H’s capacity to understand, from ‘understanding the nature of choice in having sexual relations’ to ‘understanding the health risks associated with various sexual practices’. There ‘H’ floundered. She didn’t fully understand the health risks. As so many of us don’t – to wit the various government health pamphlets and advertisements foisted upon us.
Mr Justice Hedley has ruled that:
I have therefore come to the conclusion that H lacks capacity to consent to sexual relations on two specific bases: first, that she does not understand the health implications of sexual relations, a matter made more serious in this case by her history of multiple partners indiscriminately accommodated; and secondly, that she cannot deploy the information she has effectively into the decision making process.
As a direct result of ‘H’ not being au fait with current health information:
H is supervised on a 1:1 basis at all times whether in or out of the property and she is not free to leave it on any other basis. Those who may enter the property are also carefully regulated. It is not that H does not have much to do, (she has a number of outside activities including two part time jobs) but that she cannot do it without 1:1 supervision.
This highly regulated regime evokes two observations: first, that it clearly constitutes a deprivation of liberty and indeed a DOLS standard authorisation under Schedule A1 of the Mental Capacity Act 2005 is in force and its renewal will be sought; and secondly, the purpose of these restrictions is to prevent H from engaging in sexual relations (which she would otherwise willingly do) because she does not have capacity to consent and they will be potentially exploitative and damaging.
We have come full circle. Once again we are locking up young women (and men) who are having sex that the authorities disapprove of, the only difference being that we no longer use the Bible as the basis of our deliberations, now we pretend that they have had their ‘autonomy extended’, and that they have asked the law to impose the ‘self-discipline’ that it judges they should have imposed for themselves.