What kind of freedom for people with intellectual and psychosocial disabilities can we reach with laws, professionals, plans, monitoring, and all the weight of the modern state?
Can we reach any freedom that counts?
One time, a few years ago, I had a really good day rock climbing with friends in the Dinorwic slate quarries.
I was on a climb that isn’t too hard, but that has a tricky little sequence of moves maybe thirty foot up. There’s a little ledge just before this sequence, and I was stood on that, trying to work out how to get through the difficult bit, when it started to rain. Wet slate is as smooth as glass and about as much fun to climb on, so I had to either to either bail out completely or do the rest of the climb straight away.
Something odd happened. I stopped thinking about the tricky sequence, and just started doing it. And then I kept on doing it. Climbing quickly, fluidly, and thoughtlessly up the whole rest of the climb. Climbing, basically, like someone a whole lot better at climbing than I am.
The rain was the trigger, but I mostly climb in the UK. I’ve been rained on hundreds of times, and the normal effect is just that my climbing gets even worse. I don’t really know what happened that one day, but I do know what it felt like. It felt effortless. I remember, at the time, watching myself climb and enjoying the sensation of watching myself climb. It didn’t feel like I was doing anything at all.
Now, let’s get down to how lawyers talk about people with mental disabilities.
The Mental Capacity Act says that to be capable of making a decision, I have to understand and use and weigh the information relevant to that decision. On that climb, I couldn’t have articulated to myself the information relevant to the moves I was making. I didn’t understand it. I was moving too fast to even have time to understand it. Yet it was that very lack of understanding that made it feel so great and that made me objectively climb way better than I normally do.
The UN Convention on the Rights of Person’s with Disabilities is better on this, but not by much. Instead of ‘understanding’, it tends to crunch decisions into ‘will and preferences’. I was pulling myself upwards, so presumably I ‘willed’ to get to the top. The trouble is, though, that description misses everything that was so special about the day. I wouldn’t have cared massively if I’d had to lower off the climb. I’m a mediocre climber and I’m fine with that. I didn’t have the psychological experience of ‘willing’ or even ‘preferring’ to climb. What made the climb so great was that the little voice in my head that would normally be saying things like ‘go for the little notch just to the right’, ‘shift your weight on to your left foot’, and so on actually shut up. That isn’t ‘preferring’ something. That is being free from the continual, grinding demand of preferring things.
What I am saying is that the law flattens and distorts human psychology, and that these seemingly innocent simplifications made so that lawyers can feed the empty but perpetually hungry God of ‘legal certainty’ will always have real human costs.
Freedom under the Mental Capacity Act is freedom to act on your own understanding. If you are in the large class of people with a disability whose capability for understanding is always under suspicion, then it is not the freedom to have understanding fall away and pure thoughtless action take over. As for letting understanding ‘fall away’ half way up a quarry face in the rain, well you can forget that.
Freedom under the UN Convention is freedom to determine your own will and preferences. That is not the freedom to let the endless, tedious, self-monitoring, chatty, bureaucratic modern self just shut the hell up and go and do one. If you are in the large class of people with a disability who will be suspected of ‘needing support’, then not having preferences is likely to result in some well meaning professional busybody ‘interpreting’ your non-existent preferences for you. At least the General Comment would let you tell them to get lost, but even having to do that drags you back into the world of expressing preferences to someone with implicit power over you, the power to ‘interpret’ you.
The Act’s freedom and the Convention’s freedom are, in themselves, fine. It’s when they fall into the hands of the law that they get dangerous. Then, all those little moments that don’t fit the pattern, like that day I climbed well, get pushed to the side by a bureaucratic machine bent on compliance; and then every act of empowerment carries in it the seeds of domination.
I don’t dance because I understand the ‘information relevant’ to dancing. I don’t dance because I ‘will’ to dance. I dance when the music gets a hold of me and makes me dance. Freedom is letting it.