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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.
As the tide turned against institutionalization during the mid-20th century, the law of institutions fell into crisis. Its associations with a Victorian custodial mindset and increasingly discredited eugenic outlook were problematic for those wanting to put psychiatry on a new footing – as a science of ‘mental illness’, medical treatment like any other, a modern, humane and expert discipline (Unsworth, 1987, 1991). Critics of 19th-century legalism argued that the law of institutions prevented timely treatment and fettered clinical discretion. Certification conferred no discernible benefits to patients, only stigma (Jones, 1972). Similar arguments were made about the role of judges in penal matters and sentencing (Wootton, 1963). Disciplinary professionals and administrative bodies, as the true experts, should be afforded maximum therapeutic discretion to deal with deviant populations.
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.
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.
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).
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.
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, 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.
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.
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?
