Liberty tactics
Image © Grace Currie and Helter Skelter Ltd
Last year, local authorities in England and Wales received 316,633 applications to authorise deprivation of liberty in connection with care arrangements made by others in the ‘best interests’ of people considered to lack ‘mental capacity’ under the Mental Capacity Act 2005 (MCA). To put this number in perspective, this is more than three times the prison population in England and Wales. It is six times as many detentions for involuntary mental health treatment under the Mental Health Act 1983.
The majority of these ‘detentions’ are in care homes, and there are a substantial number of extra-legal (and therefore illegal) detentions of people living in unregulated care settings, such as supported living, and other domestic and quasi-domestic settings (because these fall outside the current system of deprivation of liberty safeguards in England and Wales). The scale of social care detention is extraordinary: there are more people detained in Britain’s care homes than its prisons. More people are detained today under the Mental Capacity Act 2005 than at the height’ of the ‘carceral’ era under lunacy legislation and mental deficiency laws.
Although the scale of social care detention in England and Wales is particularly eye-watering, this is a global phenomenon occurring across a number of countries. Although there are historical precedents and antecedents for social care detention (which I explore in my book), this can feel like a new and surprising phenomenon. What lies behind the global rise of social care detention and ‘deprivation of liberty safeguards’?
In this recent article (free to read) I explore the rise of ‘social care detention’, which I argue is not a new ‘factual’ situation (people have been experiencing restrictive and sometimes coercive care arrangements in the community for decades), but rather a new regulatory framing on a pre-existent factual matrix. I show that this phenomenon is not unique to the UK; a growing number of countries are also recognising and regulating restrictive and supervisory social care living arrangements as a form of detention. This has rarely resulted from deliberate government policy, but rather the pursuit of ‘liberty tactics’ by activists, lawyers, ombudsmen and others concerned to ‘call out’ the violence that is sometimes embedded in social care, and subject it to better regulation or even abolition. I end with reflections and highlighting the challenges for reformists and abolitionists with the pursuit of liberty tactics.
Have a read if you’re interested and do post comments or share your thoughts.
The Small Places 
Hi Lucy,
Hope you are keeping well.
I’m still struggling with the idea that people in need of additional help have to first be said to ‘lack capacity.’
However, I do recognise that via the MCA etc. many people with additional needs – via ‘liberty tactics’ – subsequently receive help which may not otherwise be forthcoming.
My daughter Anna, for instance, now has a social housing tenancy with 24h support funded via CHC. This is not ideal (Support Workers should be better trained and better paid) but quite good in the current political climate.
Quite why so many people remain in institutional out-of-area placements remains a scandal, of course.
Just a quick comment for now on your article ‘Liberty Tactics’:
(page 3, third full para, last sentence): # should ‘many’ read ‘mainly’ ? # ‘(not health bodies)’ ? but what if someone is funded by NHS CHC ? and if funded by NHS CHC are they still in ‘social care detention’ ? My daughter Anna, found to lack capacity about where she wishes to live, nevertheless is now relatively happily living in social housing (funded by housing benefit) nearby to family with a 24h support (funded by CHC)
Regards,
Ken
Ah we always spot the typos too late! But yes, I don’t see the difference as being about the funding source but where the care is provided and what kind. Quite a bit of CHC is fairly “social” although often has health elements too. Thanks for your comment and I’m glad she’s doing ok in the current climate. Long may that continue.
Hi Lucy,
I am not persuaded that the 300k+ number is as much as problem as implied. It represents formally recorded arrangements with (we hope meaningful) Safeguards as represented by the S in DoLS. Before HL, when lots of people were effectively detained under “common law” there was no central (or sometimes even locally collated) record of such arrangements. Net of population and demographic changes etc, do we really know that the number of de facto deprivations has increased? It’s no great surprise that recorded numbers have increased across Europe as the HL judgment was supposed to apply across the ECtHR’s jurisdiction – with many nations as we know taking even longer than the UK to get from that judgment to commencement of some form of safeguards.
Even under DoLS, we know little of the numbers who are detained (many in “gilded cages”) in domestic and other care settings outwith the local DoLS regime. The introduction of LPS might have told us more on those numbers but obviously we are not holding our breath on that. We certainly know that many cases that should be appropriately safeguarded are not accurately represented small number that go directly through the Court of Protection.
The greater risk seems to me that populist politicians are tempted to set targets that appear to reduce headline numbers rather than do meaningful things to assure that the “least restrictive” forms of care are always promoted.
Terry