A little while ago I was chatting with my mate T, who is an artist, about law. T commented that he didn’t really think about law very often, or encounter it in his everyday life. This got me thinking about the place of law, the locations where we encounter and think about law. I suggested that there were signs of law around us all the time – traffic signs, disclaimers and warnings on packaging, pub closing hours, small print and so on. This made me wonder about how our lives give us different attunements to law. I grew up in the shadow of two types of litigation that had major consequences for my life and my family. Perhaps that has made me more sensitive to law – those years of amassing evidence, giving evidence, rebutting evidence, waiting for lawyers to call and judges to make decisions.
When I worked in care services, I don’t recall talking or thinking about the law much. We did talk about the ‘duty of care’, but our understanding of this was very different to what I now know the ‘duty of care’ is in tort law. We thought the duty of care was something more like a power to take actions to protect people, even if they didn’t want to be protected. I suppose liability must have been hovering around the edge of our consciousness somewhere, but I don’t recall anybody ever talking about this. Working in care I observed many things that I would now call human rights violations, but I didn’t use that vocabulary back then. I knew what the Human Rights Act was – we had learned about it in sixth form when it was passed – but somehow I didn’t connect that to what I was observing in care. I think I thought that human rights were something to do with terror suspects, criminals and prisoners – which is shocking to recall now, but that is the impression I had somehow absorbed. The problems I saw in care felt like injustices, forms of oppression, but I think I thought about them as more socio-political than legal. I remember talking about these issues to friends, reading up on work by Foucault, Nik Rose and critical discursive psychologists like Mark Rapley, but it didn’t occur to me that these were legal problems as well, that law could or should solve.
I think this began to change when the Mental Capacity Act 2005 came into force. I’ve written here several times about the story of how I learned about it – being bollocked by a social worker for wanting to call the GP of a lady who had symptoms suggesting a very serious health problem, but was very unhappy and did not want any help. This was a bit of a lightbulb moment for me: there were limits to what we could do in the name of care, beyond what our managers dictated. Suddenly the possibility of appealing to a tier of authority above the care provider became ripe with exciting possibilities. Maybe there were ways I could have challenged the inappropriate use of restraint, or blanket rules, or excessive restrictions that I’d seen in care services? As a front line care worker paid the minimum wage (or less) the idea that you could use the law to change things was potent, that you could invoke the law to argue for what you instinctively felt was right. I began to redirect my plans to do a PhD in the sociology of disability rights towards a PhD in law, to explore this exciting piece of legislation. Suddenly, for me, the law was present in care services, where I had never noticed it before. I wonder how many other people had similar lightbulb moments, either from the Mental Capacity Act or perhaps the Human Rights Act 1998? The Act has, I suspect, hugely increased the visibility of law in medical and social care settings.
But the place of law in care services is not without controversy. For some people, the law simply doesn’t belong in care. In one sense, the Court of Appeal decisions prior to Cheshire West were about saying that certain kinds of law should not apply to people who do not meet certain expectations of legal subjects (the kinds of expectations that are associated with the writings of John Stuart Mill, who also happened to argue that ‘liberty’ rights should not be afforded to ‘races in their nonage’ and other offensive exceptions). They were also about saying that the law does not belong in certain kinds of places, particularly places that aspire to a particular ideal of domesticity. Barrister Barbara Hewson wrote an article for Spiked magazine entitled ‘Keep the law out of disabled care’; she argues that the cause of scandals like Winterbourne View is not the absence of law: ‘the cause of such scandals is bad care’. As if ‘bad care’ were somehow not also a legal issue, and should only be addressed by extra-legal means. Meanwhile Jon Holbrook has argued that human rights ‘distort’ our perceptions of care, that human rights law should not be used to address problems of public policy. Holbrooks’ argument is based on the assumption that ‘Universal third party oversight of care arrangements might be desirable if those lacking capacity were routinely deprived of adequate care. But this is not the case’. Holbrook’s rosy vision of the care sector is not universally shared, and it may depend upon levels of direct exposure to care services, regulatory reports etc, and also one’s background assumptions about what ‘good care’ looks like for adults with mental disabilities. I can imagine, for example, that many people with a very traditional and paternalistic view of disabled people might think that the regime at Rose Villa was ‘good care’. A more fundamental question is whether law is an effective and appropriate method for addressing these types of concerns, and what kind of law.
I’m interested in this instinct that the law simply does not belong in certain places. I wonder if the gut reaction of some that the law has no place in care, or that ‘care plans’ should not be scrutinised closely by the courts because their content is somehow extra-legal and outside of the proper place of law, is linked to a sense that care is private, whereas law belongs in the public sphere? Perhaps it is linked to wider discourses that resist the law increasingly encroaching on family life. Perhaps it is simply practical: we cannot police the sheer scale of these issues, no matter how seriously they might impact upon people’s lives.
I feel ambivalent about these debates, and my ambivalence has been piqued recently by learning that several families are now being contacted by local authorities who believe they are depriving their relatives of their liberty. Whilst I support the ruling of the Supreme Court in Cheshire West in relation for formal care services, I feel very uncomfortable about the application of an area of law that is designed to scrutinise and constrain the power of professionals and service providers, to family life.
On the one hand, the republican in me thinks why on earth should people be subject to arbitrary interferences with the most fundamental elements of their everyday lives, without the protection of the law, in the name of ‘care’? On the other hand, once we invite law into these settings, it brings in train an entire bureaucracy that can be experienced as invasive, bewildering and alienating. When I look back at the years of my life that our family spent waiting for litigation to complete, I can see that it fundamentally altered who we were as people, our narratives, identities and relationships to each other – you learn to present yourself in a particular light to respond to the needs of the case, when real life is invariably more complex and fluid and nuanced than that. Particular parts of your story and identity can become rigid and sedimented through the requirement of the legal system to repeatedly perform them, and whilst it’s not that they aren’t true, they are rarely the whole truth – which is much messier and contradictory. You are exposed to experts who pronounce upon who you are and can do deep symbolic damage to your identity and sense of self in the process, and parties who seek to undermine your case in a variety of invasive and sometimes deeply distressing ways. Law does not come without a cost, no matter how successful your claim.
It sometimes strikes me, thinking about the Mental Capacity Act 2005, that it encroaches upon the private sphere more thoroughly and deeply than any other piece of legislation I can think of. In theory, or at least according to the Code of Practice,* the Act applies not only to the actions of professionals, service providers and the courts, but also to families providing care for disabled relatives. It applies, at least according to the Code of Practice, not only to the big decisions but also the minutiae of people’s lives. Suddenly, the law is there in the kitchen (can he choose what he eats for dinner?), in the bedroom (does he still have the capacity to consent to sex), at the front door (should I lock it to stop him wandering into the street?). The law is there in the growing potential of professionals to scrutinise and challenge the everyday decisions of family in how they care for relatives. And sometimes, that’s a really good thing – we don’t want families to exercise unfettered control over their relatives in the name of the ‘private sphere’. But there is a price to be paid. The Mental Capacity Act does not straightforwardly ‘empower’ disabled people to resist the power of families or professionals, it has empowered both families and professionals to police each other using the law, and we need to think very carefully about the implications of this and what it will mean for the identities, relationships and lives of the thousands of people affected by the law.
*We could argue about this. In some ways, the Act only applies to the extent that other areas of law mean that a person might be liable for acts that would otherwise constitute trespass etc, and so would rely upon the defence of s5-6 Mental Capacity Act. It’s hard to see how a family member not offering somebody a choice of what to wear or eat would be actionable under private law. But at the same time, the positive obligations upon public authorities to protect human rights, which do penetrate everyday life much more deeply, mean that families’ day to day practices may became legally salient.