Social care detention is anchored in the right to liberty. Although, as I argued in Chapter 3, this has deep roots and antecedents in the carceral era, 21st-century social care detention is a global phenomenon, with close links to international human rights law. Indeed, it is plausible that without international human rights instruments, particularly the ECHR, Anglo-Welsh domestic legal frameworks regulating social care detention (the MCA DoLS/LPS) would not exist. The problems sheltering under the umbrella of social care detention might be understood as different kinds of legal problem, or perhaps not as legal problems at all. This chapter provides an overview of the international human rights settlement, from its development shortly after the Second World War through to the present day, with a view to understanding its pivotal role in developing and cross-fertilizing the concept of social care detention.
Human rights at the end of the carceral era
International human rights law was born in the aftermath of the Second World War, developed by politicians, activists and lawyers building a new world from the wreckage of the war. They were informed by the Nuremberg prosecutions of appalling ‘crimes against humanity’ perpetrated by the Nazis. This included the trial of Nazi doctors responsible for medical experiments and a euthanasia programme that murdered thousands of older and disabled people living in institutions. The initial draft of the ECHR was by British lawyer David Maxwell-Fyfe, a prosecutor at Nuremberg.
These new international human rights law instruments aimed to protect world citizens from their own governments, even from each other. They were drafted, adopted and monitored by new intergovernmental organizations – the United Nations (UN) and the Council of Europe. As the Preambles to the UN (1948) Universal Declaration of Human Rights (UDHR) and the
As I will discuss in Chapter 8, some contemporary critics of social care detention argue that these instruments were not ‘about’ the kinds of situations considered in Cheshire West, but were directed toward the kinds of ‘bestial abuses’ perpetrated by the Nazis, or found in the Soviet gulags (Rochdale Metropolitan Borough Council v KW & Ors [2014] EWCOP 45, [11]). The suggestion is that social care detention is a corruption or misapplication of post-war human rights norms and values. So, we will take a moment to consider what world the ‘right to liberty’, as enshrined in the UDHR, the ECHR and their close relations, was born into, and what – if anything – their framers might have thought about the rights of disabled people.
Many commentators on the development of international disability human rights law argue that disabled people were ‘invisible’ to the framers of these post-war human rights instruments, despite the horrifying atrocities and Nazi genocide of institutionalized and disabled people (Dhanda, 2006–7; Kayess and French, 2008; Quinn, 2009; Kanter, 2015). They point to article 2 UDHR, emphasizing the universality of human rights. It lists groups with certain protected characteristics – ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ – stressing their entitlement to all rights and freedoms, yet nowhere mentions disability. This silence on disability is replicated in article 19 of the International Covenant on Civil and Political Rights (ICCPR, UN, 1966), and the non-discrimination provisions of article 14 ECHR. One possible originalist reading is therefore that disabled people like MIG, MEG and P were entirely invisible to the framers of the UDHR and ECHR.
The reality is gloomier than mere invisibility. Many enthusiastic champions of the UDHR and ECHR were advocates of eugenic sterilization or segregation of ‘mental defectives’ before the war, including H.G. Wells (Partington, 2003) and Winston Churchill (Fennell, 1992). The Travaux Préparatoires for the ECHR (European Court of Human Rights, undated) record a UK proposal to explicitly prohibit involuntary sterilization and involuntary medical treatment under article 3 ECHR (prohibiting inhuman and degrading treatment and torture). This was rejected after the Danish representative highlighted that several European countries still had legislation permitting involuntary sterilization on eugenic grounds. Meanwhile, the framers of article 5 ECHR – the right to liberty – were keen to list those forms of detention considered acceptable within a democratic society, as an additional safeguard against political abuse. Therefore, article 5(1)(e) lists ‘persons of unsound mind’ as one of a few limited categories for lawful detention. The travaux records no debate for this provision; it seems to have been common ground that incarceration on grounds of ‘unsoundness of mind’ was legitimate.
The post-carceral turn in international human rights law
Recognition of disabled people as positive rights-bearers under international human rights law crystallized slowly during the post-carceral era. Kanter (2015) provides a comprehensive history of this evolution. I highlight threads from our earlier narrative which were woven into international human rights law, paving the way for recognition and regulation of social care detention.
In December 1971, the UN adopted its first instrument formally and explicitly recognizing disabled people as rights-bearers – the (non-binding) ‘Declaration on the Rights of Mentally Retarded Persons’ (UN, 1971). The Declaration was based on a draft text developed by the International League of Societies for the Mentally Handicapped – an international network of mainly carer-led organizations (sometimes dubbed the ‘parent movement’) founded in 1961, concerned about the life circumstances of their sons and daughters with intellectual disabilities. The League was galvanized by a keynote speech by normalization’s father, Bank-Mikkelsen (1969), who argued for a charter of rights enshrining core elements of its philosophy.
While the final text did not go quite as far as Bank-Mikkelsen would have liked (Herr, 1976), it elevated elements of normalization as human rights norms. The first clause of the Declaration states that ‘[t]he mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings’, and goes on to enumerate rights to healthcare, education, ‘training’ and guidance to ‘enable him to develop his ability and maximum
Between 1983 and 1993, the UN declared a ‘decade of disabled persons’, appointing rapporteurs on conditions of disabled people worldwide. Daes (1986) and Despouy (1991) highlighted the appalling conditions found in mental disability institutions. The United Nations (1991) adopted a set of principles for ‘[t]he protection of persons with mental illness and the improvement of mental health care’ (known as the MI Principles), directed toward psychiatric institutions and compulsory treatment. The MI Principles working group was chaired by a British government lawyer, Henry Steel (1991), with representatives from several states and organizations representing religious groups, lawyers, criminologists, psychiatrists, and one single organization of disabled people (Disabled Peoples’ International).
The MI Principles reflected the basic tenets of the law of institutions: that there is a population – ‘persons with mental illness’ – who may sometimes need to be detained in ‘mental health facilities’ for their protection or that of others; that they should be identified through legal procedures involving qualified experts in mental illness; that they should be protected against arbitrary confinement by rights to review and appeal. Lengthy provisions detailed the substantive and procedural safeguards attending measures of confinement, compulsory treatment or restrictions on legal capacity reflected the legalism that increasingly characterized Western mental health laws, including the MHA 1983. They also reflected, to some extent, the language of normalization, for example in statements that ‘to the extent possible’ people with mental illness should be able to live in ‘the community’ (principles 3 and 7) and be treated in the ‘least restrictive environment’ (principle 9). The post-carceral shift toward community-based services is also reflected in references to ‘social care’ as well as health care.
By the late 20th century, the legal and social situation of disabled people was increasingly visible within the international human rights community. The established approach was qualified rights to live ‘normal’ lives in the community, while enveloping psychiatric institutions in swathes of legal regulation. Seen in today’s lights, none of this seems especially radical. Kanter (2015) and others close to the global DPM call this the ‘old paradigm’ of human rights, in contrast with the ‘new paradigm’ embodied by the CRPD – which I will discuss shortly. This ‘old paradigm’ is, as Kanter points out, built on a medical model of disability and mental illness. Rights to ‘community’ and ‘normal life’ exist but are heavily qualified by imperatives to ‘protect’ and ‘rights to treatment’ (whether wanted or not). The old paradigm expresses an increasingly ornate legalism, providing for ‘an ever more perfect and safeguarded process of loss’ (Quinn, 2013: 7): loss of legal capacity, loss of liberty, loss of ordinary rights to self-determination.
For reformers in many states, this represented significant progress. Post-carceral inflected legalism provided new tools to chip away at institutional confinement, advocate for better living conditions, less coercion, better treatment of those incarcerated, less restrictive alternatives (Rosenthal and Rubenstein, 1993; Lord, 2010). Yet, the reformers’ dilemmas is that with each hammer blow against institutions that emancipates some clients or groups from particularly abhorrent circumstances, the basic tenets of the law of institutions – that confinement of some is sometimes necessary and acceptable, subject to legal safeguards and suitable conditions – is forged anew, and sometimes stronger for it.
Recognizing social care detention in human rights law
By the late 20th century, soft-law international human rights instruments positioned disabled people as rights-bearers. They particularly targeted psychiatric institutions, using human rights law to establish normative and procedural standards determining whether and when people with mental disabilities belong in institutions or community, and to regulate the conditions and treatment within psychiatric institutions.
Social care detention was not yet recognized; the community was the promised land. None of the instruments described earlier indicated that a person could be ‘deprived of their liberty’ in a care home, let alone their
Since the new millennium, however, this began to change as different human rights bodies and rapporteurs stated that deprivation of liberty could exist in ‘social care’ and community settings. For example, the UN Working Group on Arbitrary Detention (WGAD, 2017: [55]) stated that it was ‘increasingly aware’ of people being detained in other ‘institutional’ settings such as ‘social care homes for older persons, care facilities for those with dementia and private institutions for people with psychosocial disabilities’. The WGAD emphasizes that ‘deprivation of liberty’ is a question ‘of fact’; if the ‘person concerned is not at liberty to leave, then all appropriate safeguards’ must be in place to protect against arbitrary detention [56]. It based this analysis on a 1964 working definition of detention as ‘the act of confining a person to a certain place, whether or not in continuation of arrest, and under restraints which prevent him from living with his family or carrying out his normal occupational or social activities’ (WGAD, 2012).
Social care detention under the ECHR
The most pronounced drive toward recognition of social care detention as a human rights concern has been under the ECHR. This development is particularly important for UK law because, unlike all the other human rights treaties discussed in this chapter (including the CRPD), only the ECHR has been ‘incorporated’ into domestic law, via the Human Rights Act 1998 (HRA). This means that the domestic courts can adjudicate violations of the ECHR, including unlawful deprivation of liberty; something they cannot do for violations of the CRPD, which holds only persuasive authority (Lawson and Series, 2018). Human rights litigation in the Strasbourg court paved the way for the insertion of the DoLS into Anglo-Welsh law – and similar provisions in many countries across Europe – providing the conceptual tools for the Cheshire West acid test.
Human rights litigation advancing recognition of social care detention under the ECHR has been brought or supported by activist and civil society groups concerned with the living conditions of people with mental disabilities living in institutions (psychiatric or otherwise) across Europe. These include the Mental Disability Advocacy Centre (now ‘Validity’),
For reformers, coupling social care placements to the machinery of article 5 ECHR potentially secures access to a bundle of procedural rights that can be used to challenge them. These rights have been established incrementally by the ECtHR in its jurisprudence on mental health detention, beginning with Winterwerp v the Netherlands in 1979 (Bartlett et al, 2007). I have described more fully elsewhere how these ECtHR rights have been interpreted and embedded in the MCA DoLS/LPS (Series, 2019). However, in outline they require that: any ‘deprivation of liberty’ be in accordance with a ‘procedure prescribed by law’ (article 5(1)); that the individual – or a representative acting on their behalf – be informed of the reasons for the detention and their rights (article 5(2), Van Der Leer v The Netherlands [1981] ECHR 6); and that those who are deprived of their liberty can bring proceedings to challenge it before a court, which is empowered to order their discharge from detention (article 5(4)).
In practice, this means formal, legally prescribed assessments by experts – predominantly psychiatrists (Winterwerp, [45]) but potentially psychologists or psychotherapists (Law Commission, 2015: [7.175]) – to provide ‘objective’ evidence of a ‘true mental disorder’ of ‘a kind or degree warranting compulsory confinement’ (Winterwerp [39]). These assessments must be sufficiently independent of the detaining authorities to ‘counterbalance’ the ‘broad powers vested in health-care professionals’ (IN v Ukraine [2016] ECHR 565, [81]).
The ECtHR has woven post-carceral human rights norms into article 5, echoing the principle of least restriction. Deprivation of liberty must be
The Strasbourg court has also strengthened rights of challenge by reiterating that it is not enough to simply inform a person of this right if they are, in practice, incapable of exercising it without assistance; it must be communicated to somebody who can represent their interests (ZH v Hungary [2012] ECHR 1891). The court has repeatedly reiterated there must be ‘special procedural safeguards’ to facilitate appeals against detention, which may entail ‘empowering or even requiring’ a representative to act on their behalf (MH v UK [2013] ECHR 1008, [93]). A person should not be reliant on the discretion or goodwill of others to appeal against their detention (Stanev v Bulgaria, [174]). In Chapters 7 and 10 we will revisit why this rights-bundle may have seemed attractive to those acting on behalf of people with cognitive impairments in social care settings in England and Wales, but first let us consider how social care detention came to be recognized by the ECtHR.
The way the Strasbourg court approached questions of liberty held important consequences for strategic litigation. Deprivation of liberty under article 5 ECHR is conceptualized as having three elements (Storck v Germany [2005] ECHR 406). First, an ‘objective element’, of whether a person has in fact been confined to a place for a non-negligible period of time – sometimes known as their ‘concrete situation’ (Guzzardi v Italy [1980] 3 EHRR 333, [92]). Second, a ‘subjective element’, concerning whether the person has given a ‘valid consent’ to their confinement (Storck [74]). And third, whether these arrangements are ‘imputable to the state’. Imputability is interpreted broadly, including both arrangements directly involving public authorities, but also where the state has ‘positive obligations’ to protect against interferences with liberty by private persons (Storck [89]).
The objective element distinguishes between mere restrictions on liberty and deprivation of liberty. The difference is ‘one of degree or intensity, and not one of nature or substance’, a question of fact which takes into account ‘the type, duration, effects and manner of implementation of the measure in question’ (Guzzardi, [93]). This ‘particularist’ framing is favoured by judges wary of establishing broad principles with ‘automatic’ legal consequences (Harrington, 2017: 150).
The Bournewood case applied this subjective/objective test of deprivation of liberty to the situation of HL, a British autistic man who had been ‘informally’ admitted to hospital, and who – according to the UK government at least – had neither ‘objected’ nor attempted to leave (HL v UK [2004] ECHR 720). The government argued that the regime he experienced was equivalent to a ‘voluntary’ patient who had validly consented, therefore he could not be said to be detained. There are reasons to doubt the veracity of these statements which I will discuss in Chapters 7 and 8, however, the ECtHR took the point at face value: could a person who was ‘incapable’ of consenting to confinement, who was not objecting and who had not attempted to leave, still be ‘deprived of their liberty’ in the meaning of article 5 ECHR? The court found they could be: the distinction relied upon by the UK government between actual restraint and restraint conditional on a person attempting to leave was of no consequence under the Convention [90]. The court identified as the ‘key factor’ that ‘the concrete situation was that the applicant was under continuous supervision and control and was not free to leave’ [91]. This formula would reverberate through subsequent Strasbourg rulings on social care detention, leading Lady Hale to conclude in Cheshire West that this was the acid test of deprivation of liberty under the ECHR (Cheshire West, UKSC, [48]–[49]).
The question of whether social care placements could amount to deprivation of liberty was first put to the court in HM v Switzerland (2002) 38 EHRR 314. HM, a Swiss pensioner, was placed in a nursing home by local authorities following concerns about self-neglect, relying on a Swiss civil code provision for ‘Deprivation of Liberty on Grounds of Welfare Assistance’ [18]. HM’s expressed wishes were ambivalent: she appealed against the placement in the domestic courts, expressing a desire to ‘get out’ [21], yet recognized it was better for her to stay in the home and subsequently
It was Rusi Stanev’s case – brought with the support of the Mental Disability Advocacy Centre – that saw the Grand Chamber of the Strasbourg court recognize social care detention for the first time. The facts of the case were so strong in framing Stanev’s confinement as arbitrary, ‘institutional’ and deeply troubling that it is hard to see how the court could have avoided this conclusion. In Stanev v Bulgaria [2012] ECHR 46, Mr Stanev had been diagnosed with schizophrenia in the 1970s but a later psychiatric assessment found no symptoms of this. He had been placed under guardianship at the request of his relatives. His guardian, a local council officer, placed him in the Pastra Care Facility without consulting him.
The facility was in a remote mountain location, isolated from society, housing 92 male residents. The conditions were utterly deplorable – heavily criticized by the European Committee on the Prevention of Torture and Inhuman and Degrading Treatment (CPT) – whose role I consider below. The ECtHR considered they constituted inhuman and degrading treatment under article 3 ECHR, noting the poor condition of the living quarters, poor quality food, unhygienic toilets and scant washing facilities, absence of any meaningful activities and that the residents did not even possess their own clothes. The court stressed the long duration of Mr Stanev’s stay – seven years – suggesting that the extended temporalities of social care detention may elevate what might not be considered ‘inhuman or degrading’ as a temporary measure into a fundamental human rights violation [209]. Stanev had tried to challenge his placement and restore his legal capacity, but as a person under guardianship he had no legal standing before the court and so could not initiate the proceedings himself. He had considerable freedom of movement within the facility, and some freedom to come and go, but this was at the discretion of the home’s director and he was brought back by police if he absconded for too long. On these trips he would walk for miles, visiting a local monastery to talk to tourists, and providing assistance to local villagers (Flynn et al, 2018).
The ECtHR concluded Rusi Stanev was indeed deprived of his liberty, echoing the reasoning in HL v UK: ‘he was under constant supervision and was not free to leave the home without permission whenever he wished’ [128]. This detention was arbitrary and did not comply with the substantive
In short succession the ECtHR handed down three further judgments finding that applicants placed by guardians in social care facilities were deprived of their liberty (D.D. v Lithuania [2012] ECHR 254; Kędzior v Poland [2012] ECHR 1809; Mihailovs v Latvia [2013] ECHR 65). These cases were again supported by international disability and user/survivor NGOs. In each case, the ECtHR employed variations of the acid test formula (D.D., [146]; Kędzior, [57]; Mihailovs, [129]). It bears noticing – and critics of Cheshire West would stress this point – that each of these cases originated in post-Soviet countries, which are still very reliant on large-scale, isolated and highly institutional social care facilities (Mladenov and Petri, 2019). Each country operated guardianship laws which typically deprive a person of ‘legal capacity’ (the ability to make legally valid decisions) across all areas of life, including even the ability to challenge one’s placement or being put under guardianship. These ‘concrete situations’ were so very similar to mental health detention in large-scale institutions, and their legal situation so plainly problematic, it is not surprising the court ruled as it did.
For reformist civil society groups supporting these cases, this litigation was as much about ‘chipping away’ at guardianship as it was about highlighting ‘deprivation of liberty’ in social care facilities (Lewis, 2011). However, the outcomes fell short of abolitionist goals, of persuading the ECtHR to declare that these forms of disability-specific deprivation of liberty and deprivation of legal capacity should be abolished altogether and replaced with rights to live fully in the community (Lewis, 2012).
The cases secured greater substantive and procedural protection for those placed in social care facilities by their guardians, entrenching the ‘law of institutions’ in residential community settings. This pattern is now fanning out across Europe; several countries are embarking upon reforms to guardianship laws and developing deprivation of liberty safeguards for social care placements (Public Defender of Rights, 2017; Polish Commissioner for Human Rights, 2018; Commissioner for the Administration and Protection of Human Rights (Cyprus), 2019). In other countries, human rights organizations cite cases like Stanev to push for equivalent reforms (Ombudsman of the Republic of Croatia, 2017; Human Rights Ombudsman of the Republic of Slovenia, 2018). Some European states – including Germany, Austria and Switzerland – already operated public and private law systems for authorizing deprivation of liberty in ‘social care’ settings, but ‘social care detention’ is unrecognized and unregulated in both France and Spain (Boente, 2017). Recent litigation in France, brought by organizations representing autistic people confined to care homes during the COVID-19
But to what extent does recognizing and regulating social care detention help secure the actual liberation of those confined? It is difficult to give any general answers to this. Progress across Europe toward ‘community’ living is slow, although may be enhanced by EU ex ante conditionality on structural funding, prohibiting it from being spent on repairing or replacing ‘institutions’ and encouraging the building of community services (Crowther, 2019a). For Mr Stanev himself, his celebrated landmark human rights story took him from imprisonment in (in his own words) ‘the most terrible place’ to being the first person deprived of legal capacity to attend their own hearing in Strasbourg. Following the ruling he was released from Pastra but placed in another ‘home’ and his guardianship was not lifted (Flynn et al, 2018: 199). Stanev never reached freedom; he died in 2017, at the age of 61. His story is a sad reminder that extending and entrenching the law of institutions to new locations will achieve only limited change unless we build better material alternatives.
Monitoring social care detention
Similar trends toward recognizing social care detentions can be seen in human rights bodies concerned with the second branch of the law of institutions – monitoring conditions in places of detention to ensure they do not fall below acceptable standards. Shortly after the new millennium, two new treaty bodies were established at the UN and the Council of Europe, concerned with preventing torture and inhuman and degrading treatment through systems of independent monitoring of places of detention. Both the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT, Council of Europe, 2002) and the Optional Protocol on the Convention Against Torture (OPCAT, United Nations, 2006b) require states parties to allow independent monitoring bodies access to places of detention, in order to prevent abuse. The CPT achieves this through its own visitation system across Europe, however OPCAT requires states to establish their own independent National Preventive Mechanisms (NPMs) to visit places of detention and report on conditions therein. OPCAT monitoring of health and social care detention in the UK is performed by the bodies responsible for licensing and regulatory inspection: the CQC, CIW and HIW.
The ECPT adopts the article 5 ECHR definition of ‘deprivation of liberty’, and therefore reflects Strasbourg jurisprudence. It produced guidance for monitoring social care settings in 2015 (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1998; Pirjola and Raškauskas, 2015).
Article 4 of the OPCAT defines ‘deprivation of liberty’ as ‘any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority’. Deprivation of liberty for ‘medical reasons’ and in psychiatric settings were discussed during the negotiations of OPCAT, but not social care (Nowak et al, 2019: 741–2). However, the Special Rapporteur on Torture, Manfred Nowak (2007), called for ‘social care centres’ to be included in monitoring visits because of the volume of individual communications he received concerning violence against women in these settings. The Association for the Prevention of Torture (2010: 29), a body founded by Gautier and instrumental in developing the ECPT and OPCAT, also states that ‘social care homes’ should be included within the SPT and NPM visiting mandate.
Some OPCAT signatories have, however, resisted including ‘social care’ settings within preventive detention monitoring. Some countries, relying on a Russian translation of article 4 of OPCAT as being held ‘under (armed) guard’ (содержания под стражей’), argued that orphanages and social care homes did not fall within its scope (Human Rights Implementation Centre, 2011). Most NPMs today, however, accept that social care institutions fall within their monitoring remit, and therefore many countries that have ratified OPCAT implicitly recognize social care detention even if they do not regulate it as such domestically. Almost all the most recent NPM reports to the SPT include social care settings such as nursing homes, residential care for older or disabled people, and children’s homes.2
Countries such as France and Australia, which do not currently include social care institutions within their NPM’s preventive monitoring mandate, are outliers. However, their reasons for refusing to include these settings tells us something about governmental resistance to recognizing and regulating social care detention. In France, the Contrôleur Général des Lieux de Privation de Liberté (2012: 244) argued that its mandate should include retirement homes, citing the ‘far from negligible’ risks of fundamental rights violations, ‘closely comparable’ to that of prisons and psychiatric institutions before the NPM was established. However, there were ‘serious obstacles’ to this: social care placements were generally privately arranged by families rather than public authorities; comparing older people in residential care to the position of a ‘captive’ might be thought ‘illogical’ or even ‘rather disrespectful’; and ‘in theory’ no formal legal obstacles prevented older people from leaving. Finally, the ‘scale of the problem’ would require a significant increase in resources. Subsequently, the Contrôleur Général des Lieux de Privation de Liberté (2014: 42) expressed regret that this proposal to extend its monitoring mandate to include retirement homes ‘did not receive a favourable response’.
Australia recently ratified the OPCAT. The Australian government decided to exclude social care settings from the NPM mandate, on the basis that ‘aged care facilities do not fit within the concept of ‘places of detention’ as set out in article 4 of OPCAT’ (Senate Standing Committee on Legal and Constitutional Affairs, 2019). This has been met with concern by those arguing that aged care homes and community facilities for disabled people can be places of detention and that current monitoring is inadequate, citing a serious institutional abuse scandal in an aged care facility, Oakden (Lea et al, 2018; Grenfell, 2019; Weller, 2019). The Oakden scandal prompted a Royal Commission into Aged Care (2021), whose recent recommendations included an enhanced system of quality monitoring and vague references to rights to liberty, yet made no mention of OPCAT despite this being raised in
It is possible that, eventually, Australia will follow New Zealand, which ratified OPCAT in 2007 but only began monitoring social care facilities in 2019/20 (New Zealand Human Rights Commission, 2018; White, 2019). Currently, however, despite the clear inclusion of social care institutions within OPCAT guidance and the work of sister NPMs, both Australia and France resist the very idea that social care settings could be associated with deprivation of liberty, cleaving toward the traditional paradigm of the prisoner and understandings of deprivation of liberty as a question of formal legal authority rather than of fact. Only Finland has adopted the logics of social care detention to the extent it includes supported housing within its NPM monitoring mandate (even the UK has not done this, despite Cheshire West).
Abolitionist human rights
Over the past 20 years, ‘social care detention’ has been recognized as a significant human rights concern by major international human rights bodies. Their chief concerns were arbitrary detention – without adequate safeguards or means of challenge – and the conditions of confinement; mirroring those animating Thomas Townshend and the early reformers who created the law of institutions. The response has been to develop increasingly elaborate human rights norms and procedures for regulating social care placements amounting to detention, and independent monitoring systems to prevent abuse.
While reformist-influenced human rights law extended and thickened the law of institutions, a radical alternative paradigm of human rights has developed, connected with the UN CRPD. As Kanter (2015) and others have recounted, the UN CRPD resulted from decades of strategic campaigning by disabled people’s organizations and their allies (Dhanda, 2006–7; Kayess and French, 2008). People with lived experience of disability (including psychosocial disability) and disabled people’s organizations played a central role in drafting and negotiating the CRPD. Whereas earlier human rights instruments either ignored disabled people entirely or were drafted by people without lived experience of disability, the CRPD embodies the ‘nothing about us without us’ ethos of the DPM. It is therefore built on what Ben-Moshe (2020: 112) calls ‘maroon abolitionist knowledge’, the knowledge of those directly experiencing or at risk of incarceration. Consequently, it is imbued with a sense of urgency, impatient with reformist ‘chipping away’ at
At first glance, the CRPD’s roll call of rights resembles the core UN human rights instruments. However, on closer inspection it differs in important respects. Its description of disability reflects a social not medical model (article 1), and the themes of equality and non-discrimination are visible in almost all of its substantive rights. Its emphasis is on rights to self-determination, a limited emphasis on protection (article 16), with no mention of ‘vulnerability’ at all. This was deliberate choice by its drafters, who associated ‘protection’ measures such as guardianship and institutionalization as human rights abuses in themselves (Keeling, 2018).
The CRPD’s provisions concerning mental health detention – articles 14 (on liberty), 15 (on whether involuntary treatment constituted torture or inhuman and degrading treatment) and 17 (integrity of the person) – were particularly contentious during the negotiations, as proponents of disabled people’s organizations, particularly user/survivor groups, argued for norms that would outlaw all forms of non-consensual care, treatment and confinement (Bantekas et al, 2019). The final text is, in certain respects, ambiguous. Some – notably the Committee on the Rights of Persons with Disabilities (CRPD Committee) – interpret it as requiring the abolition of mental health detention and involuntary treatment, while others – including other UN human rights bodies – consider it as permitting mental health detention subject to safeguards (Doyle Guilloud, 2019). This has led to what Martin and Gurbai (2019) call the ‘Geneva impasse’. The tension between old and new paradigms is particularly acute in relation to the right to liberty, where article 5 ECHR only permits deprivation of liberty on certain limited grounds – including ‘unsoundness of mind’ – and article 14 CRPD states that ‘the existence of a disability shall in no case justify a deprivation of liberty’. The ECHR would appear to only permit something akin to mental health or social care detention on disability-related grounds; the CRPD appears to prohibit these altogether (Bartlett, 2009; Fennell and Khaliq, 2011).
It is not possible to do justice here to the flourishing scholarship, policy work and activism on the CRPD, particularly concerning mental health and disability-related detention and legal capacity. However, because social care detention is so closely linked to legal capacity, and because – as I will argue later on – the scope of the acid test is closely linked to what we mean by ‘mental incapacity’ – I will offer a few comments on the CRPD’s notoriously contentious and sometimes difficult to interpret provisions on legal capacity. Article 12 CRPD is the ‘right to equal recognition before the law’. It
Article 12’s provisions were deliberately crafted to be ambiguous, to enable the treaty to be signed and adopted by states parties who wished to preserve substitute decision making, yet backed by disabled people’s organizations who advocated for its abolition (Dhanda, 2006–7). However, in 2014 the CRPD Committee (2014a) adopted General Comment No. 1 on article 12. Their authoritative (but non-binding) interpretation is that it prohibits all forms of substitute decision making, including guardianship and other ‘denials of legal capacity’; states must replace this with regimes of ‘supported decision making’. This is perhaps an unfortunate expression, evoking arrangements whereby a person who can express clear choices receives support to make decisions, raising questions of what happens for those unable to express a clear choice at all. This challenge is often posed by critics of the CRPD as ‘what about a person in a coma?’ (Gooding, 2015).
However, by ‘supported decision making’ the Committee refers to a new paradigm of ‘universal legal capacity’. This recognizes the choices of those capable of expressing them as legally valid (whatever their putative ‘mental capacity’), but adopts an approach called ‘facilitated decision making’ in the literature for those unable to express clear choices (Bach and Kerzner, 2010; Flynn and Arstein-Kerslake, 2014). Where a person is unable to ‘clearly’ express a choice, trusted third parties may make decisions and act on their behalf in accordance with the ‘best interpretation of their will and preferences’, as opposed to an ‘objective’ best interests standards (CRPD Committee, 2014a: 21). On this understanding, even if a third party is making decisions on your behalf, provided you are thought not to object to that person making decisions for you or the outcome of the decisions they make, and they have made their best efforts to understand and reflect what they think you want (or would want), then this is a ‘supported’ and not ‘substituted’ decision in the ontological universe of the CRPD.
We will leave charged metaphysical debates as to whether this is really ‘substitute decision making’ by another name for someplace else (I offer my own thoughts on this elsewhere: Series, 2015a; Series and Nilsson, 2018). Strategically, positioning ‘facilitated decision making’ as something other than substitute decision making, as adhering as closely as possible to our best guess at what the person wants rather than what we think is best for them, tries to close off the dynamics of institutionalization, whereby a person ends up
This approach to supported or facilitated decision making could potentially resolve one of the more troubling paradoxical outcomes of the acid test: how a person who is positively happy in their living arrangements can be said to be detained. The ‘universal legal capacity’ paradigm contains the conceptual tools to understand how a person who ‘lacks capacity’ could give a ‘valid consent’ to care arrangements that could otherwise be a ‘deprivation of liberty’, so long as this is anchored in their will and preferences, with suitable safeguards to prevent abuse. I will revisit this approach in later chapters.
States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
- a)Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement.
- b)Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community.
- c)Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.
Social care detention and abolitionist human rights
To what extent, then, do the treaty bodies, rapporteurs and activists closely linked to the CRPD recognize social care detention? The answer, somewhat unexpectedly, is surprisingly little in comparison with the ‘old paradigm’ instruments considered above.
The General Comment on independent living recognizes that institutionalization can take many forms, and calls upon states to ‘release all individuals who are being confined against their will in mental health services or other disability-specific forms of deprivation of liberty’ (CRPD Committee, 2017: [48]), but does not elaborate what those other forms of deprivation of liberty might look like. Certainly, there is no recognition that deprivation of liberty can occur even in specialist services intended to promote independent living. Similarly, a ‘statement’ on article 14 by the CRPD Committee (2014b) (issued in response to the United Nations Human Rights Committee (2014) statement discussed earlier), affirms its position on the ‘absolute prohibition of detention on the basis of impairment’. However, its force is directed toward involuntary confinement in ‘mental health institutions’; again, there is no explicit mention of other forms of disability-specific detention, for example in residential social care facilities. Meanwhile, the CRPD Committee’s (2014a) General Comment on article 12 discusses the connection between guardianship laws and involuntary institutional placement yet does not explicitly identify these practices as detention. The impression – rightly or wrongly – is that the CRPD Committee is strongly oriented toward the situation of people with psychosocial disabilities who are concerned about mental health detention, but are less attuned to those at risk of social care detention. This is unfortunate, because social care detention presents difficult dilemmas for abolitionists, and it would be helpful to have the CRPD Committee’s leadership and guidance on this.
The CRPD Committee has had several potential opportunities to recognize deprivation of liberty in residential care and other social contexts
A series of complaints against Australia alleged that the people living in community care facilities were deprived of their liberty because of the failure to provide adequate housing and support in the community. Two were subsequently withdrawn after support was provided (Kendall v Australia (15/2013) 29 April 2019 CRPD/C/21/D/15/2013; MR v Australia (16/2013) 5 July 2018 CRPD/C/18/D/16/2013), the third was ruled inadmissible because deprivation of liberty arguments had not been raised before the domestic courts (DR v Australia (14/2003) 19 May 2017, CRPD/C/17/D/14/2013). Disappointingly, therefore, the Committee did not engage with arguments that DR was deprived of his liberty in a residential centre consisting of small ‘pods’ with four bedrooms and communal facilities because he could only leave with staff’s permission, nor the Australian government’s counter-argument that ‘for a person to be deprived of liberty, he or she must be subject to “forceful detention” at a “certain narrowly bounded location”’ [4.32], and that substitute decisions by guardians concerning residence do not amount to detention.
Social care detention has been recognized by the previous UN Special Rapporteur on Disability, Catalina Devandas Aguilar (2019: [14], [15], [17], [18], [22]), who commissioned thematic work on disability and deprivation of liberty. While identifying mental health detention as the most ‘recognized’ form of disability-specific detention, she also described ‘placement in institutions’ and ‘home confinement’ as ‘common forms’ of disability-specific deprivation of liberty. Devandas Aguilar does not define deprivation of
A fuller definition is proposed by Flynn, Pinilla-Rocancio and Gómez-Carillo De Castro (2019: 27) in a study commissioned to inform the Special Rapporteur’s report: ‘an individual is deprived of their liberty when s/he is: confined to a restricted space or placed in an institution or setting; or under continuous supervision and control; not free to leave; and the person has not provided free and informed consent’.
The parallels to the Cheshire West acid test are remarkable. It is doubtful they are accidental; the report’s lead authors are based at the Centre for Disability Law and Policy at NUI Galway, and likely familiar with the acid test because this informed recent Irish government proposals for a DoLS-like scheme.
A broad reading of ‘deprivation of liberty’ is useful for abolitionists conscious that institutionalization-like phenomena can occur in the community or even domestic settings. However, it also presents dilemmas insofar as the acid test includes people who are positively happy with their living arrangements and may not be in any kind of ‘institution’ at all. In their consultation response to the Department of Health (Ireland) (2019: 32, 41), the Centre for Disability Law and Policy expressed concerns about categorizing ‘everyone who is suspected to lack capacity’ as deprived of their liberty, arguing that recent capacity legislation in Ireland ‘recognizes that even where a person is deemed to lack capacity, appointed supporters can interpret his or her will and preferences to form the basis of a decision’. Few other abolitionist commentators on disability-specific deprivation of liberty have directly engaged with the dilemmas of social care detention and the acid test; this suggests some may endorse facilitated decision making-inspired approaches to resolve these paradoxical situations.
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The basic problematization of ‘institutional’ care and the legal response of the law of institutions are replicated under contemporary international human rights law. Since their development after the war – a time when disabled people were invisible, or worse, to the framers of these international human rights instruments – they have become imbued with post-carceral norms and the spirit of legalism. Several treaty bodies now recognize social care detention. Although resisted by some states, most international human rights bodies now recognize that a person may be deprived of their liberty in a care home, a nursing home or similar; the fact of being ‘in the community’, or lacking ‘legal capacity’ does not mean rights to liberty lose traction.
It is surprising – and disappointing – to see such limited engagement between abolitionist readings of the CRPD and the dynamics and dilemmas of social care detention. As I argued in Chapter 2, social care detention is fundamentally different from mental health detention, affecting different populations, loci, interventions, targeting different ‘problems’ and guided by different rationalities, legal technologies and ‘experts’. While there are certainly some cases where it is obvious what ‘abolition’ of social care detention would look like – closure of care facilities like Pastra, for example – there are many examples considered in this book where this is less clear cut. Some cases can be filtered out by constructing ‘valid consent’ from the tools of the CRPD’s ‘universal legal capacity’ approach (Series, 2020). I will argue in later chapters that this would be a useful approach under the DoLS/LPS. However, it only takes us so far.
In particular, it is unclear what ‘abolition’ looks like for somebody like P in the Cheshire West case, who is living in so-called ‘independent living’ accommodation, with a purported tenancy, and ‘support’ enabling him to do things which at least his supporters believe he might enjoy. But as we will learn in more detail in Chapter 8, P’s life is also characterized by supervision, control and physical restraint, which aims to stop him from choking on things he puts in his mouth. This is no theoretical risk; it had led to hospital admissions for choking in the past. The abolitionist emphasis on eradication of all restrictive practices might be read as implying there should be no such interventions, that staff should not physically intervene to prevent someone like P from choking, or likewise to prevent MIG or MEG from wandering in front of traffic, or others at risk from similar everyday hazards. This is a stark outcome, difficult to reconcile to the vision of disability rights. Yet the alternatives are also hazardous to the abolitionist intentions behind the CRPD. It is understandable why advocates of the CRPD’s new paradigm are hesitant to engage with these hardest of hard cases, lest the old paradigm regrows through these cracks. Yet, while these situations might be hard, they are not at all unusual in social care. They demand our attention, not relegation to the shadows of the new paradigm.
I do not have answers; and there may not be a single answer. Part of the reason I wrote this book was to pose the question.
Addressing those who ask about the ‘dangerous few’ in prison abolition circles, Ben-Moshe (2020: 124) argues that we need to learn from the ‘successful deinstitutionalization closures’ of disability institutions, which began with the resettlement of ‘those labeled as having the most significant needs’. Yet this answer will not do here, because many of those labelled as having the most significant needs – those, for example, that Mansell helped resettle – are men and women like P, in the Cheshire West case, who we now recognize as deprived of their liberty in the community, even in ‘supported living’ and perhaps in their own homes.
Social care detention is uncomfortable from an abolitionist perspective because the answer is not merely ‘closure’ and relocation. By defining deprivation of liberty in relational terms, the acid test leaves nowhere to hide from these uncomfortable and often intractable dilemmas. Perhaps, then, questions of deprivation of liberty are not productive for our present predicament. Perhaps they are ghosts from our carceral past come knocking. In the next chapter I will consider other ways of conceptualizing both our positive goals (real homes, in the community) and the harms of institutions that we hope to avoid, and suggest this may be a more helpful orientation than the binary logics of the law of institution.
I helped to draft some of their intervention in MS v Croatia (No 2) [2015] ECHR 196 as a research fellow in Galway in 2013.
In 2020 I examined the most recent (English language) NPM reports on the SPT website and the following countries included references to monitoring of social care settings: Austria; Bulgaria; Croatia; the Czech Republic; Denmark; Finland; Germany; Greece; Hungary; Kyrgyz Republic; Lithuania; the Netherlands; Norway; Poland; Serbia; Slovenia; Sweden; United Kingdom.