Liberty, social care detention and the law of institutions

Stephen Martineau, Research Fellow at the NIHR Policy Research Unit in Health and Social Care Workforce at King’s College London, reviews Deprivation of Liberty in the Shadows of the Institution by Lucy Series (University of Bristol). Page numbers in brackets refer to the book, which was published in March 2022 (and is available for free). (2,642 words)

Introduction

One of the more familiar stories from recent UK history about the lives of people with longstanding serious mental illness or intellectual or cognitive disabilities is their move from large-scale institutional accommodation to living arrangements beyond the walls of such places. The extent of this ostensible deinstitutionalization is illustrated by the decline in hospital beds for ‘mental illness’, ‘geriatric’ patients and people with intellectual/learning disabilities—from over 200,000 in 1955 to under 20,000 in 2020 (Series, 2022: p.53). Much of this shift was to do with the closing of survivals of the Victorian era (which started out being called asylums, subsequently renamed mental hospitals) that took place through the second half of the twentieth century.

As Lucy Series describes in her book, Deprivation of Liberty in the Shadows of the Institution, these newer smaller-scale living arrangements may take the form of ‘quasi-institutions’ (residential care and nursing homes) or ‘quasi-domestic’ arrangements (‘supported living’, ‘independent living’, sheltered housing), or indeed ordinary homes.

Series describes this development as a passage from a ‘carceral’ to a ‘post-carceral’ era (after Unsworth, 1991). But in making the physical move away from institutions, to what degree have some less tangible aspects of the old institutional life been carried over to those new living arrangements, as far as these individuals are concerned? To what extent, Series asks, are they still living in ‘the shadows of the institution’?

This question was brought sharply into focus in the UK Supreme Court case of Cheshire West, the litigation that forms the dramatic fulcrum of this book. The court’s approach meant that its definition of deprivation of liberty applied to a much wider array of living arrangements than had hitherto been the case, extending to private homes, where family members were the carers (or custodians?) of the person concerned. It is the socio-legal ramifications of this move (which Series views as transgressive) that are the main concern of the book. To put it briefly and in human-rights terms, in its approach to concerns about liberty in the area of social care detention—under article 5 of the European Convention on Human Rights—the court seemed to set up a clash with a set of questions belonging more under article 8 (respect for private and family life), to do with the distinction between institutions and homes.

This review is split into five short sections: 1. Social care detention. 2. The acid test. 3. Liberty. 4. Home. 5. Out of the shadows?

1. Social care detention

In an interview with Alex Ruck Keene, Series described social care detention as ‘the recognition and regulation of living arrangements in community settings as a deprivation of liberty’, where ‘community’ refers to any place that is not a hospital (see the examples above). There are now more people deprived of their liberty in Britain’s care homes alone than in its prisons, granted these detentions are of a benevolent character (p.226). Series charts the history by which various populations became subject to what she calls the law of institutions, which has developed in order to oversee both mental health and social care detention. The law of institutions has two main facets. On the one hand it is concerned with safeguards for individual liberty—for example, the Mental Health Acts and their antecedents, and the Deprivation of Liberty Safeguards (DoLS, shortly to be replaced by the Liberty Protection Safeguards). On the other hand, the law of institutions involves licensing and inspection to regulate conditions (in England today this is done by the Care Quality Commission).

Early chapters of the book draw the distinctions between mental health detention and social care detention. While the former is broadly focused on psychosocial disabilities, where the person may be resistant and dangerous, and the goal (these days) may be treatment and cure, the latter form of detention caters for long-term ‘cognitive’ impairments (including both dementia and intellectual/learning disabilities). The latter group has tended to be seen as ‘non-volitional’ and ‘incapable’—not exercising will or even experiencing liberty, and historically informality, rather than a protective legalism, around their detention has often been seen as acceptable. But the story Series tells is one that is punctuated by scandals and, in the case of the late twentieth century, it is characterised by social movements away from institutions toward independent living—homes not hospitals. In charting this change, she asks to what degree rather than wholesale liberation, we have instead seen ‘transcarceration’—the spread of carceral practices from institutions into the community. She suspects there is an ‘institutional treadmill’ which pulls us back into the past: even though people are ‘in the community’, institutional practices and attitudes endure.

2. The acid test

Social care detention in England and Wales is regulated via the Mental Capacity Act 2005 (MCA). Since 2009 the Act’s DoLS regime has covered detentions in care homes and hospitals (the latter falling outside the scope of this book because not social care detentions). A key element of the Cheshire West ruling by the UK Supreme Court in 2014 was that, by virtue of its universalist application of a definition of ‘deprivation of liberty’, safeguards were to be enforced not just in hospitals and care homes, but also in precisely those living arrangements which had developed as a result of the social movements characteristic of the post-carceral era. In the case of the three people at the heart of Cheshire West, these arrangements were a small group home, a ‘supported living’ setting, and living with a foster parent.

The acid test to be applied to all living arrangements was whether the person ‘was under continuous supervision and control’ and ‘not free to leave’ (Cheshire West, para 49). Different standards were not to be brought to bear just because of the particular disability of the person concerned (contra Munby LJ’s view at the Court of Appeal stage): ‘[t]he whole point about human rights is their universal character’ (para 36). In addition, neither the benevolent intent of the carer nor the subjective experience of the individual was relevant to the question of whether the person was deprived of their liberty or not. For Lady Hale, there was an overriding policy imperative: the securing of a periodic ‘independent check’ on care arrangements which passed the acid test was needed because of the ‘extreme vulnerability’ of the people concerned (para 57).

For Series, the transgressive quality of the Supreme Court’s approach is brought home by Lord Neuberger’s remark from the judgment: ‘I cannot see any good reason why the fact that a person is confined to a domestic home, as opposed to a hospital or other institution, should prevent her from contending that she has been deprived of her liberty’ (para 71). By applying the definition to such circumstances, the ‘acid test dissolved this unstable boundary delimiting the law of institutions’ (Series: p.177). Taken together with the discounting of the person’s subjective experience, Series suggests: ‘The danger is that for some ‘incapacitated’ people there is no longer any possible outcome that looks like ‘liberty’.’ (pp.8-9).

3. Liberty

Another way of looking at Cheshire West is as a victory for human rights. A founding principle of post-carceral legal thought in respect of this population, namely informality, was to be displaced by a new kind of legalism. Series notes that the appeal of informality in the mid-twentieth century was such that many health and welfare decisions were being made on behalf of people regarded as ‘non-volitional’ or ‘lacking capacity’ without any legal basis at all. On one view, that very informality around living arrangements was testament to an understanding of this population as being not ‘really in possession of ‘liberty’ in the first place, consigned to a realm beyond the law, of legal ghosts’ (p.31). Informalism (as against legalism) draws on ideas traceable to Enlightenment philosophers such as David Hume, who thought that one must possess ‘will’ in order to have ‘liberty’. If those without will (the ‘non-volitional’) could not logically be deprived of their liberty, then there was no call for liberty safeguards. In moving away from this, Cheshire West was a great step forward (whatever the challenges it presented to local authorities on the ground).

But what kind of liberty is most relevant here? Political theorists such as Quentin Skinner and Philip Pettit have excavated the idea of republican liberty. Skinner, for example, has argued that our familiar notion of negative liberty (broadly, an absence of external interference) was put forward by Thomas Hobbes in Leviathan (1651) in a bid to discredit republican liberty, which derives from Roman law. Series quotes Philip Pettit on republican liberty, who helpfully (in light of the wording in the acid test) discusses it in terms of control:

‘Alien control without interference materializes when the controller or associates invigilate the choices of the controlled agent, being ready to interfere should the controlled agent not conform to a desired pattern or should the controller have a change of mind.’ (Pettit, 2008: p.201. My emphasis)

That readiness to interfere is a useful way into the idea of republican liberty, or rather its obverse, which is labelled ‘domination’. In Series’ words, in contrast to negative liberty’s focus on actual interference, the idea of republican liberty is ‘structural and conditional, sensitive not only to what is happening but what could happen without appropriate checks and balances over power’ (p.209). Pettit’s invigilating of choices is redolent of the idea of ‘continuous supervision and control’. In terms of the quality of life of the person concerned, much may depend here on just how fine-grained such invigilation becomes—in contrast, for example, to the relatively macro matter of deciding where to live. The ideal of republican liberty, Series suggests, resonates positively with ‘independent living’ and ‘personal assistance’—as against the language, say, of ‘care’ (p.210).

4. Home

It is here that the book takes up the socio– in socio-legal scholarship as Series marks out the distinctions between institution and home, a life at home being the broad aspiration of the social movements associated with the post-carceral era. She suggests that institutions are often construed as hidden (and requiring regulation for public accountability); whereas home is private. Home is about the control of the threshold. And in an important section, Series draws on studies that have shown that well-being depends less on functional independence than the exercising of choice and control. From this she develops the idea that home is best understood as a decision space. She contrasts this with the diminished opportunity for choice and control in institutions, citing the well-attested effects of institutionalization, be it ‘depersonalization’ (Townsend, 1962), for example, or ‘mortification of the self’ (Goffman, 1961). (Along the way, she refers to my colleague Caroline Green’s recent examination of the Care Quality Commission’s approach to privacy, choice and control in English care homes.)

So, the question is how we best manage the aspiration for a decision space of our own, while (to use the language of republican liberty) recognizing and mitigating the domination—the invigilating of our choices—that in some measure might be necessary where our safety is at stake. After all, the three people at the centre of the Cheshire West litigation were seen as needing protections, whether that was in relation to choking, or road safety. Given the need for an ‘independent check’, is it inevitable that the way to manage this tension is to revert to the law of institutions, with its safeguards and its regulations, even though this itself would seem corrosive of the very idea of leading a private life at home?

5. Out of the shadows?

This is a question that has exercised Series since the Cheshire West judgment and it is the challenge she leaves us with in this rich and stimulating book. She suggests that the law of institutions, at least in the form developed by the Supreme Court, is not welcome in home environments—that it is an invasion of privacy of a kind. Its incursion here has brought with it administrative-legal problems (which include, intriguingly, certain judges rebelling against the development) and understandable socio-cultural resistance. It may ‘toxify relations’ between families and local authorities, or possibly stop people from seeking help (p.232). She has also been concerned that one of the wider political repercussions might be to bring human-rights approaches in general into disrepute.

Series aims ‘to clear a space for the possibility of thinking otherwise’ about this topic (p.9). Her historical synopsis in the book benefits from being strongly motivated by this goal, in the face of the impasses which would seem to characterise the terrain. More than once she uses, as a point of reference, a book about anti- and post-colonial narrative in which the author emphasizes the tragic over the romantic historical dimension, the latter being characterised by a ‘triumphant and seamlessly progressive’ picture of history which falls short of adequately capturing what has taken place (Scott, 2004: p.13). The tragic may be the more apt idiom, acknowledging the existence of ‘paradoxes and reversals’: in the context of social care detention this might better articulate the difficulties thrown up by the Supreme Court’s approach. In her conversation with Ruck Keene, Series says that for many one of those difficulties is the ‘extremely upsetting’ experience of having the care of their relatives described as a deprivation of liberty. For her, what is ‘dispiriting’ is that the expansive Cheshire West conception of deprivation of liberty means that we are ‘applying a label that we thought we’d left behind to things that we’re still doing now’. (To which, at around 14 minutes in, Ruck Keene responds: ‘It might be dispiriting, it might be upsetting. Is it wrong?’)

Towards the close of the book Series fastens on three aspects of the unfolding narrative of social care detention. First, and this is of particular relevance to my colleagues and I (we focus on the health and care workforce), Series highlights the role of what she calls ‘empowerment entrepreneurs’ (p.229). They are embedded in a new ‘care-professional legalism’ and may be Best Interests Assessors or Independent Mental Capacity Advocates (or Approved Mental Capacity Professionals under the forthcoming Liberty Protection Safeguards) or others. Typically with an expertise in human rights law, they may be in a position to further an essentially reformist ‘less restrictive’ agenda in individual cases. That said, Series does not downplay the constraints within which these professionals work. If, for example, financial circumstances are such that very few options for care and support are available, might these professionals’ actions become implicated in the impersonal ‘institutional’ aspect of social care detention?

Second, the UN Convention on the Rights of Persons with Disabilities (CRPD) embodies an abolitionist opportunity, with its conception of universal legal capacity—abolitionist because of its purported transcendence of the MCA paradigm. Its promotion of the ‘will and preferences’ (article 12 CRPD) of persons with disabilities explicitly puts paid to the idea of the ‘non-volitional’. In light of this, Alex Ruck Keene and others developed the idea of a person’s ‘valid consent’ to their living arrangements—that is, in circumstances where the person, while lacking capacity by the lights of the MCA, is positively happy with the way things are. Assuming they are not subject to coercion, Series argues, it would not be appropriate to say of individuals in such circumstances (in ordinary domestic situations or not) that they are deprived of their liberty, though the elements of the acid test are present (p.207).

Finally, Series returns to the idea of home as a decision space. While acknowledging ‘continuous supervision and control’ might be called for, a tight focus on the significance for their well-being of the person making their own choices, and all concerned being responsive to the idiosyncrasies of every person in this respect, will mitigate unnuanced ‘institutional’ tendencies. This, Series suggests, might augment a sense of home and help keep the ‘institution’ and its mores at bay.

Stephen Martineau is Research Fellow at the NIHR Policy Research Unit in Health and Care Workforce at King’s College London.

Series, L. (2022) Deprivation of Liberty in the Shadows of the Institution, Bristol: Bristol University Press. Available free here: https://library.oapen.org/handle/20.500.12657/53234

Notes

Conversation between Alex Ruck Keene and Lucy Series about the book (29 March 2022).

Goffman, E. (1961) Asylums, London: Pelican Books.

Grace Currie film based on the book.

Green, C. (2020) The potential role of human rights and the right to privacy in the context of English care homes for older people: multiple perspectives. PhD, King’s College London.

Human Rights and Social Care Forum (convened by Caroline Green at the NIHR Policy Research Unit in Health and Social Care Workforce, King’s College London).

Kong, C. (2017) Mental Capacity in Relationship: decision-making, dialogue and autonomy. Cambridge: Cambridge University Press.

P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19

Pettit, P. (2008) Republican freedom: three axioms, four theorems. In Laborde, C. & Maynor, J. (eds.) Republicanism and Political Theory. Oxford: Wiley-Blackwell.

Ruck Keene, A. (2017) Discussion paper: deprivation of liberty, Cheshire West and the CRPD, London: 39 Essex Chambers.

Scott, D. (2004) Conscripts of Modernity: the tragedy of colonial enlightenment, Durham and London: Duke University Press.

Series, L. (2021) Liberty Alert! The Small Places blog, 16 December.

Series, L. (2022) Safeguarding liberty and human rights – report on workshops, The Small Places blog, 3 March. (This touches very interestingly on some of the themes of the book. It includes input from legal and social care practitioners, as well as people who have conditions that are often linked to deprivation of liberty in care settings and their families.)

Skinner, Q. (2016) A Genealogy of Liberty, Harry F. Camp Memorial Lecture, Stanford University, October.

Townsend, P. (1962) The last refuge: a survey of residential institutions and homes for the aged in England and Wales, London: Routledge and Kegan Paul.

Unsworth, C. (1991) Mental disorder and the tutelary relationship: from pre- and post-carceral legal order. Journal of Law and Society, 18, 254-278.

Leave a Reply

Your email address will not be published.