The Bournewood case posed a new question of vast numbers of people in hospitals, residential care and other ‘community’ settings: is this person deprived of their liberty? If so, the DoLS or some other formal authority was needed to regulate the situation. Yet this question did not come naturally to the inhabitants of the post-carceral landscape of care, its very meaning imbued with liberation from the legal and institutional structures of the carceral era. Suggestions that people might be ‘deprived of their liberty’ by community care arrangements were outliers, curios for legal enthusiasts (Brearley et al, 1980/2001: 68). For most, this was a ‘hitherto unknown question’ (Allen, 2009: 19), a new game without written rules or clear traditions of practice, to secure or repel the law of institutions in the community through persuasion and other tactics.
A week before the Supreme Court handed down its ruling in Cheshire West, the House of Lords Select Committee on the MCA (2014) reported on its post-legislative scrutiny of the Act. It concluded that while the MCA’s principles were ‘visionary’ for their time, its ‘empowering ethos has not been delivered’ owing to poor awareness and understanding, and cultures of paternalism and risk aversion in health and social care. The Committee concluded the DoLS were poorly drafted, overly complex, tens of thousands of people were unlawfully detained, and ‘far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned’. The Committee recommended that the government ‘start again’ (pp6–7).
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During the 20th century the locus of care shifted from large institutions into the community. However, this shift was not always accompanied by liberation from restrictive practices. In 2014 a UK Supreme Court ruling on the meaning of ‘deprivation of liberty’ resulted in large numbers of older and disabled people in care homes, supported living and family homes being re-categorized as ‘detained’.
Placing this ruling in its social, historical and global context, this book presents a socio-legal analysis of social care detention in the post-carceral era. Drawing from disability rights law and the meanings of ‘home’ and ‘institution’ it proposes solutions to the Cheshire West ruling’s paradoxical implications.
Social care detention, and its growing reach into the lives of older and disabled citizens and their caregivers, is one of the most striking socio-legal phenomena of the 21st century. Following the Supreme Court’s ruling in Cheshire West, the ambit of legal machinery designed to regulate institutional carceral care has broken free of its conceptual moorings and stands poised to regulate care arrangements far removed from formal ‘institutions’, producing paradoxical outcomes and practical dilemmas explored throughout this book. By naming this socio-legal phenomenon ‘social care detention’ I intend to distinguish it from other forms of detention more familiar to legal scholars, and identify some of its unique characteristics. I want to bring social care detention out of the shadows of its near neighbour, mental health detention, challenging often implicit assumptions within mental health law, policy, scholarship and activism that social care detention (or detention under the MCA) is a form of mental health detention ‘lite’, pointing toward ways that this sense has been historically produced.
In one of Connecticut’s finest care homes, Ellen Langer and Judith Rodin (1976) conducted an experiment. They allocated the residents of one floor of the care home to a ‘responsibility induced’ experimental condition, and those on another floor (carefully matched for health, age, mobility and ability to communicate) to a ‘comparison’ group. The friendly nursing home administrator read each group a communication. The ‘responsibility induced’ group were ‘reminded’ of their responsibility and ability to decide whether ‘you want to make this a home you can be proud of and happy in’. They were ‘reminded’ that they could decide how they wanted the furniture in their rooms arranged, how to spend their time, who to visit, and how they could influence how the home was run. Residents were offered a choice of which night they’d like to watch a movie and given the option to select a plant as a gift to ‘take care of as you like’. The comparison group were given a similarly upbeat message, but this one stressed the staff’s responsibility for their happiness, for arranging their furniture, and that they were ‘permitted’ to visit others. They were told which night they could watch a movie and were given a plant and told that staff would take care of it (p194). Three weeks later, residents in the responsibility induced group reported significantly greater levels of happiness after the intervention than the comparison group.
The socio-legal landscape of care is haunted by its carceral past. The asylums, workhouses, ‘mental deficiency colonies’ and large psychiatric hospitals that once warehoused thousands of men, women and children in England and Wales have almost all have been demolished, or repurposed as flats, prisons, schools, wedding venues even. People who might once have been incarcerated in those large Victorian buildings now live in a mythical space called ‘the community’, whose identity within the contemporary landscape of care derives from it being other than ‘an institution’. The current prevailing ideology of care in countries like the United Kingdom is post-carceral (Unsworth, 1991), a succession of policies and initiatives promoting ‘ordinary’ or ‘normal’ lives in homes in the community, elevating autonomy, independence, ‘person-centred’ care, and choice and control. Post-carceral ideology takes aim not only at the carceral era’s buildings, but at its institutionalizing core.
During what Unsworth (1991) and Castel (1988) called the carceral era, a period dating from the late 18th century through to the middle of the 20th century, the landscape of care became increasingly dominated by institutional confinement. A bifurcated legal framework developed to regulate the institutional confinement of people with mental disabilities, which I call the ‘law of institutions’. One branch of the law of institutions conferred safeguards for individual liberty; the second branch deployed licensing and inspection to regulate the conditions within. I address these frameworks together, referring to them as the ‘law of institutions’, to highlight that they were directed toward governing institutions and their operators as much as acting upon their target populations. These classical carceral-era legal structures have endured for almost 250 years. In England and Wales today, the liberty safeguards branch is performed by the MHA and the MCA DoLS/LPS, and regulatory functions are performed by the Care Quality Commission (CQC) in England, and the Healthcare Inspectorate Wales (HIW) and Care Inspectorate Wales (CIW). Similar structures exist across most Global North and some Global South countries (Pathare and Sagad, 2013; World Health Organization, 2017).
Social care detention is transgressive. The Cheshire West acid test collapsed the imaginary boundary line bisecting the landscape of the law of institutions, extending regulatory structures developed to manage the threat of institutionalized carceral care into the spheres of home, family and ‘community’. This signals trouble for post-carceral ideology, which identifies homes and community as sites of freedom. Whatever liberty is now, its locus cannot be neatly drawn on a map, but rather requires a careful unpicking of relational-spatial micro-dynamics of power across diverse and dispersed care arrangements. Cheshire West is a powerful sign of a system in crisis, of unsustainable pressures and tensions within the post-carceral landscape of care. On one reading, Cheshire West is a victorious story of human rights, finally recognizing the legal personhood of populations too long consigned to a legal netherworld of ‘informality’. Another telling of Cheshire West is a tale of tragedy, of a lost future horizon free of the carceral institution, of a journey back into our carceral past. There are now more people deprived of their liberty in Britain’s care homes than its prisons, or any other paradigmatic carceral site (Series, 2019).
Between the town where I grew up and the nearest city lay Powick Hospital – one of the large Victorian county asylums, built in 1852. English composer Edward Elgar sometimes conducted the asylum orchestra. In 1968, World in Action filmed the first of a new genre of documentaries, exposing on national television its shocking inner workings and appalling treatment of elderly female patients (Ward F13; Nairn, 1968). It was not even filmed undercover; the hospital superintendent felt the public should be outraged over conditions in hospitals like his. Yet Powick was still operational when I was born in the early 1980s. It closed in 1989; its patients dispersed into ‘the community’, its buildings and vast grounds redeveloped as high-end residential accommodation. As teenagers we wondered who would wish to live there, among the ghosts. The story of Powick Hospital mirrors that of almost the entire network of Victorian asylums, and symbolizes the post-carceral narrative of transition from hospitals to homes. As Figure 4.1 shows, the post-carceral era saw a dramatic decline in hospital beds for ‘mental illness’, ‘geriatric’ patients and people with intellectual disabilities: over 200,000 in 1955 dwindled to fewer than 20,000 in 2020.
The critical question posed by Cheshire West and its aftermath is why are we invoking this classical carceral-era legal machinery at the height of the post-carceral era, and in places far beyond the reaches of the ‘institution’? What ‘problem-space’ (Scott, 2004) shaped the litigation strategies that led to DoLS and its later expansion? Why were problems framed in terms of ‘deprivation of liberty’, and not some other form, inviting an alternative regulatory response? Why, indeed, turn to law at all?