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Law lecture explores relationship between the state and the private life

Mark Hedley lecture Wednesday 11 November 2015

When and how the state should intervene in private life was explored by Professor Sir Mark Hedley in the third lecture of his free public series.

Sir Mark discussed the extent and desirability of the powers the state does and does not have when it comes intervening in matters of mental capacity, family law, adoption and medical treatment.

The lecture reflected on the fact the state cannot protect against every risk or aspect of human fallibility, even when harm results.

Sir Mark said: “Personal freedom can sometimes come at a high price and can severely test the human instinct to intervene and protect.

“However, there will be many cases, many more I think than is generally believed, where the state will have the power to intervene. Nowhere is that more true than amongst our ageing population.”

The court’s power to commit a person to a care home without their consent was described as a ‘draconian power that may have lifelong consequences’.

While Sir Mark questioned whether the public was fully aware or approved of duties entrusted to judges with regard to regulating personal relationships.

He described adoption cases as an area where the tension between privacy and protection is acute.

Sir Mark said: “Adoption highlights the tension between privacy and protection more clearly than most other issues, not least because it is final, absolute and, in practice at least, irrevocable.

“If the court gets it wrong either way, the implications are enormous.”

In conclusion, Sir Mark suggested the importance of finding a working balance between privacy and protection.

“It is the key role of the judge to be both gatekeeper and regulator of that balance and it is essential, if that is to be accepted within society, that the judge must have the informed consent of society in so acting,” he reflected.

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