Managing mental incapacity in the 20th century: A history of the Court of Protection of England & Wales.

This article explores the history of the Court of Protection of England & Wales (CoP) over the twentieth century. The CoP, which is responsible for making financial and welfare decisions on behalf of those deemed incapable of doing so themselves, presently faces a rapidly growing caseload, and considerable scrutiny and critique. Such close attention to its work may be new, but many of the issues it faces have deep roots. Using practitioners' texts, judgements, and the archives of the CoP and the Lord Chancellor's Office, I review the evolution of the CoP in terms of its structure and caseload, its decisions regarding incapacity, its efforts to manage the affairs of those found incapable, and its long-term survival. This reveals the origins of many of the issues it faces today, the different anxieties and approaches that have animated its work in the past, the ways in which approaches to incapacity have changed, and the value of a historical perspective.

Citizenship, Vulnerability and Mental Incapacity in England, 1900-1960s.

Over the twentieth century, the Lunacy Office (renamed the Court of Protection in 1947) was responsible for appointing 'receivers' to manage the property of adults in England who were found incapable of managing their own affairs. Tens of thousands of people were in this position by the 1920s, and numbers continued to grow until after Second World War. This article uses the archives of the Office to examine the evolution of the concept of mental incapacity over the first half of the twentieth century, offering a corrective to the popular impression that the time before the Mental Capacity Act of 2005 was an era of ignorance and bad practice. It examines the changing ways in which being 'incapable' was understood and described, with particular reference to shifting ideas of citizenship. I argue that incapacity was not always seen as absolute or permanent in the first half of the century, that models of incapacity began to include perceived vulnerability in the interwar period and that women in particular were seen in this way. From the 1940s, though, the profile of those found incapable was changing, and the growing welfare state and its principles of employment and universality saw the idea of incapacity narrowing and solidifying around knowledge deficits, especially among the elderly. This brings the history of the Lunacy Office into the twentieth century and connects it to current concerns around assessments of mental capacity today.

A Lipskian analysis of child protection failures from Victoria Climbié to "Baby P": a street-level re-evaluation of joined-up governance.

This paper explores the issue of joined-up governance by considering child protection failures, firstly, the case of Victoria Climbié who was killed by her guardians despite being known as an at risk child by various public agencies. The seeming inability of the child protection system to prevent Victoria Climbié's death resulted in a public inquiry under the chairmanship of Lord Laming. The Laming report of 2003 looked, in part, to the lack of joined-up working between agencies to explain this failure to intervene and made a number of recommendations to improve joined-up governance. Using evidence from detailed testimonies given by key personnel during the Laming Inquiry, the argument of this paper is that we cannot focus exclusively on formal structures or decision-making processes but must also consider the normal, daily and informal routines of professional workers. These very same routines may inadvertently culminate in the sort of systemic failures that lead to child protection tragedies. Analysis of the micro-world inhabited by professional workers would benefit most, it is argued here, from the policy-based concept of street-level bureaucracy developed by Michael Lipsky some 30 years ago. The latter half of the paper considers child protection failures that emerged after the Laming-inspired reforms. In particular, the case of 'Baby P' highlights, once again, how the working practices of street-level professionals, rather than a lack of joined-up systems, may possibly complement an analysis of, and help us to explain, failures in the child protection system. A Lipskian analysis generally offers, although there are some caveats, only pessimistic conclusions about the prospects of governing authorities being able to avoid future child protection disasters. These conclusions are not wholeheartedly accepted. There exists a glimmer of optimism because street-level bureaucrats still remain accountable, but not necessarily in terms of top-down relations of authority rather, in terms of interpersonal forms of accountability ­ accountability to professionals and citizen consumers of services.

Guardianship appointment: current status in Israel.

The appointment of a guardian is an important complex process that significantly infringes upon the individuals liberty and autonomy; however it is a necessary paternalistic intervention when called for. The law does not provide precise criteria for the appointment of a guardian, though physicians have tried to determine criteria for the initiation of the process. The authors present a review of the various aspects of the assessment of the need for guardianship and the appointment process for guardians for adults in Israel. The medical document that will ultimately determine the need for the appointment of a guardian for an elderly person should be the product of a comprehensive medical, psychiatric and cognitive evaluation and an accurate evaluation of competence.

[Aspects of senile dementia in ancient Rome: literary fiction and factual reality]. / Aspekte der Altersdemenz im antiken Rom: Literarische Fiktion und faktische Lebenswirklichkeit.

Old people and their pecularities have been the object of writers since the beginning of Western literature. The aim of this study is to verify the social and juridical significance of senile dementia in ancient Rome. Among the few relevant sources the 10th satire of Juvenal attracts attention. It describes a demented patient who revises his succession in favour of a lady with bad reputation. Logically, we wonder whether such dispositions were possible and after all legally binding. Or did Juvenal exaggerate? A look at the Roman legislation shows: Since the Twelve Tablet Law there were instruments to control or to help demented people. This meant care in the sense of the today's curatorship or guardianship. These measures were supposed to prevent extravagancy or doing business and legal acts like marriages or last wills in the state of diminished responsibility. Nevertheless, it must be assumed that there was a considerable discrepancy between juridical theory and daily practice, because the position of the "pater familias" was virtually untouchable, the individual freedom of the full citizen was firmly underlined and the Roman civil law allowed only little executive interferences. Juvenal's bizarre example should not only be taken as good literary fiction. It might reflect the sad, but nevertheless probable reality of the people directly concerned. Apart from that it has to be said that senile dementia played only a minor role in Roman legislation. Mainly because there were considerably less very old people--and in particular people with senile dementia--than today.

The new Poor Law guardians and the administration of insanity in East London, 1834-1844.

One of the main aims of the Poor Law Amendment Act of 1834 was to impose national consistency of practice in poor relief. Central guidance was designed to produce uniformity in guardians' policies on dealing with the insane. This study of the administration of insanity in the eastern metropolis in the first decade after the Act demonstrates that the new boards of guardians were as culturally distinctive in their style of administration of the new Poor Law as the parishes had been under the old regime. A complex interplay of personality, politics, and class determined the corporate culture of individual boards.

The best-interests standard as threshold, ideal, and standard of reasonableness.

The best-interests standard is a widely used ethical, legal, and social basis for policy and decision-making involving children and other incompetent persons. It is under attack, however, as self-defeating, individualistic, unknowable, vague, dangerous, and open to abuse. The author defends this standard by identifying its employment, first, as a threshold for intervention and judgment (as in child abuse and neglect rulings), second, as an ideal to establish policies or prima facie duties, and, third, as a standard of reasonableness. Criticisms of the best-interests standard are reconsidered after clarifying these different meanings.

Diagnosis, guardianship, and residential care of the mentally ill in medieval and early modern England.

Histories of psychiatry concerning preindustrial Europe emphasize demonologic beliefs and physical mistreatment of the insane. Records of an English legal incompetency jurisdiction demonstrate that both government officials and laymen accepted that psychiatric disorders had biological and psychosocial origins. This jurisdiction, which developed a social welfare dimension by the seventeenth century, offered benevolent protection for the insane. Private guardians arranged for the lodging and care of their wards in private homes. While physicians played little role in the certification process, the guardians made frequent use of their skills. Furthermore, some physicians with established reputations in psychiatry accepted patients into their homes for prolonged cures.

A doctor's dilemma: the case of William Harvey's mentally retarded nephew.

In June 1637 William Harvey petitioned the Court of Wards and Liveries, a legal incompetency court in early modern England, for a grant of the custody of his mentally disabled nephew, William Fowke. 'Idiocy' and 'lunacy' were the two medico-legal categories for insanity used by the Court and Harvey requested that his nephew be inspected for idiocy. However, the legal and administrative history of the Court indicates that in the 1630s idiocy (but not lunacy) grants were prejudicial to the assets and economic security of retarded persons. Since petitioners' wishes more than clinical status, usually determined the diagnostic label assigned to referred individuals, idiocy grants were not sought by persons of some social standing. Harvey's idiocy referral probably reflects his allegiance to his own clinical observations in the face of opposing social norms and family advantage.