The place of law in care

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.

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4 thoughts on “The place of law in care

  1. There is an unfair claim in this article.

    There is a difference between Local Authorities believing they have a duty to extend DoLS assessments to those in supportive care environments and for those LAs to believe that deprivations of liberty are occurring as you suggest. Where is your evidence for such a claim?

    Given the scale of problems caused by the Chester West judgment to LAs and the additional duties imposed on them by the 2014 Care Act, there is perhaps little surprise that the duty of wellbeing has seen DoLS widened.

    Otherwise, I enjoyed this discussion. There is a historical strand of disabled rights that seen the private family sphere as oppressive. Deprivations of liberties do occur in these environments which informs some of the perceptions of parent-led organisations. The notions of private, personal and public can be as slippery as that of deprivation of liberty itself.

    I wonder whether humanity is destined to rage at the otherness of actualising rights for those least able to exercise them for themselves? Whether we replace one cruelty for another and remain suspicious of intentions.

    It is an absence that DoLS seek to correct but can we say that these result in an enhancement of liberty? I’m not convinced that the application of the former leads to the latter.

    Perhaps the focus on negative rights which leads as you rightly state to the policing of actions as DoLS have done is the issue here.

    The attraction of the private sphere is the joy of the messy life. Where the dynamics of capacity and liberty aren’t defined by statute. Yet we expect our public sphere to be structured and measurable and accountable but don’t expect that comes at a price and rage when it does…

    There are trade offs and these need to be recognised and understood by all parties involved. The questions we need to be asking is what constitutes a good life and how we enable that. Then perhaps DoLS will be more proportionate and appropriate in their usage and application.

    • What constitutes a good life is wellness. Good Health is vital and saves lives and the state millions.

      Care Providers are in the business of safeguarding and risk they will endeavour to keep these risks, as risks pays dividends. Wellness is not on the agenda. Local Authorities will do everything to avoid being accountable for the damage that they have done without humbling themselves and saying we got it wrong.

      Families who have demonstrated that they have given there loved ones a good life should be supported to continue on this pathway. Which evidently again saves the state money. Unfortunately the power and the written word of the professional is taken on board as factual without us the families being believed.

      So so demoralising. Let us the families who have proven without doubt that we have the best interest of our loved one allow us to become the care providers in supporting and vetting who comes into the disabled person’s life. Families work on wellness. Its very dangerous out there for the P who tries to gain the right to family life and their own independence when that is just not on the agenda for the unscrupulous care provider and all he employs along with the commissioning authorities guiding the illness principle.

      By turning the lives of disabled people upside down will only in the long term cost more financially also severe damage to P and even death.

  2. I’m not convinced by the premise of the article. Was there ever a time when law was not involved in care? As an undergraduate in the 1970s, I seem to recall a lot of time spent considering how we had moved forwards from the Poor Law and Lunacy Acts etc. If you like you precedents ancient, the ‘Judgement of Solomon’ was a childcare custody case.

    As evidence of my own antiquity, I recall from my early career meeting an elderly gentleman who was concerned that he might ‘have to go to the Union’. In my youthful naivety I thought he meant a workers’ mutual benefit service. His actual concern was about the ‘union of poor law guardians” facility – the poorhouse. This had long since gone but still a fearful prospect in his head having been the reality of his own youth.

    Of course by volume, the vast bulk of care continues to be delivered without legal intervention. Most natural parents care for their own children, most support for older and disabled people is provided and received on an entirely voluntary basis and even for mental health, most of those affected go to their GPs or receive counseling without any conscious interaction with the law.

    The law is only needed in minority of cases but when it is, it is and always was.

    The MCA had brought to light some previously disguised issues but in the old days many assumed caring acts were dispensed in the name of benevolence without recourse to challenge. Many of those who were subject to wartime evacuation to rural random families, deportation to care in the antipodean colonies, laundry work experience for unmarried mothers or ‘accidental’ tubal ligature might have appreciated a right to challenge the format of their care.

    The issues I think are not new, just the way we deal with them.

  3. When I started in social work in 1971 I was handed a one-page job description which said that my role was “to assist the Director of Social Services in the exercise of the Council’s powers and the discharge of its duties under the following Acts.”

    And that was it, and that’s how it was. Everything we did was closely linked to statute, and we used legal terms to describe it – taking a child into care voluntarily, for instance, was “Section One” (Children Act 1948). We didn’t use lawyers as we were the experts in such law as there was (even if we didn’t know much else) and were expected to take our own cases to court.

    That law was, however, almost entirely about regulating entry to the care system. It extended via Home Office regulations, and often in a very inflexible way, to the care of children in institutions and foster-homes, but – the criminal law apart – other care settings were law-free zones.

    The NHS was even more so – staff followed professional rules and conventions, or directions handed down from the centre, and even senior managers had little knowledge of what statute law, if any, lay behind those directions. Mental health law regulated compulsory entry to psychiatric hospitals, but no longer their internal regimes, which had been freed in 1959 from statutory controls (e.g Lunacy Act Section 40 – “Mechanical means of restraint”) and unannounced inspections by Commissioners.

    Since then, local authorities have become much less overtly statute-driven, and as they have become more autonomous, NHS bodies have had to grapple directly with statute and caselaw rather than just centrally-generated directions and procedures based on it. Nevertheless, there’s still a significant difference in culture – many NHS staff don’t understand the distinctions between law, guidance and policy, or that the law overrides professional norms and custom-and-practice, and I’ve met senior doctors who think caselaw is just the judge’s opinion and therefore not binding, whereas social workers do still get some training (albeit less than formerly) in the structure of the law and are more aware of the legal underpinnings of what they do.

    The House of Lords, in its review of the Mental Capacity Act, noted that compliance was generally better in social care settings, and that might be down to professional philosophy being more in tune with it, but I suspect it also has a lot to do with the fact that the managers at least are more used to operating within a framework of law. The MCA isn’t the first statute to impinge directly on care practices – that was the 1984 Data Protection Act and the string of access-to-records and data-protection legislation which followed – but it’s the first to impinge directly on the normal day-to-day practice of hands-on carers, not just managers, and it’s perhaps not surprising that requirements which run contrary to established custom-and-practice, especially in health settings, and which come with little regulation and even fewer sanctions, have been observed mainly in the breach

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