Meet the Book Author: Deprivation of Liberty in the Shadows of the Institution

Lucy Series, University of Bristol

In our Meet the Book Author Series, the Journal of Law and Society and the Centre of Law and Society provide first-hand accounts from authors who have recently contributed notable socio-legal books to their respective fields. In this post, we hear from Lucy Series, whose new book Deprivation of Liberty in the Shadows of the Institution was published in March 2022 with Bristol University Press.

What is the book about? 

The book is about social care detention, an increasingly prevalent and important socio-legal phenomenon.  Social care detention means defining certain situations in ‘social care’ (that is, care homes, supported living arrangements, even private homes where people are cared for) as a ‘deprivation of liberty’, and regulating them accordingly.  

Social care detention is increasingly recognised and regulated around the world, but Britain is at the forefront of this trend, through the ‘deprivation of liberty safeguards’ of the Mental Capacity Act 2005. Today, there are more people categorised as ‘detained’ in Britain’s care homes than its prisons. 

This is a remarkable situation, particularly because we are living in what socio-legal historian Clive Unsworth called the ‘post-carceral era’, where societies like ours increasingly promote ‘ordinary’ or ‘normal’ lives in the ‘community’ for people who draw on care and support, and policies are anchored in anti-carceral concepts like autonomy, independence, ‘person-centred’ care, and choice and control. 

This leads to a fascinating question: why are we now labelling and regulating so many social care arrangements as a ‘deprivation of liberty’, when only a generation ago people being cared for in ‘the community’, and particularly those in ‘supported living’ or private domestic accommodation, would have been considered ‘free’?  What problems are we trying to solve, why have we reached for the legal machinery of detention safeguards to solve them, and with what consequences?

I trace the roots of this problem back to carceral era laws that sought to regulate the increasingly recognised harms of institutions like madhouses, asylums and so on, through licensing and inspection, and safeguards against wrongful confinement.  I show how late twentieth century deinstitutionalisation translocated populations, and reorganised care and its underpinning ideologies, yet in reality many people remain under material conditions of surveillance, control and institutional practices.  Today, the regulatory frontiers between ‘home’ and ‘institution’ are collapsing.

And so, we find ourselves ‘detaining’ an estimated 300,000 older and disabled people in connection with their care arrangements, not because of any concerted carceral government agenda, but because we are disillusioned with the material realities of ‘community care’, and when looking for solutions our socio-legal imagination is haunted by our carceral past.

Social care detention is the product of a reformist litigation strategy that puts new powers in the hands of specialist social care practitioners whom I call ‘empowerment entrepreneurs’.  As one put it to me recently, they try to make things ‘a bit less shit’. But they are hamstrung by wider economic, social and cultural forces that the law simply cannot contain.  The paradox of social care detention, is that we may end up legitimating and normalising the very problems that social care detention’s reformers aimed to call out and correct.  

Why did I write it? 

I wrote the book because this really matters.  I worked in social care for a long time and remain close to many people who remain working in it or rely upon it. People really are very restricted, and yet many people struggle with these complex legal structures. Social care detention is a possibility for any one of us, a likelihood even, as we get older.

I also wrote it because social care detention tells us something really interesting about the relationship between law and society.  Yet it is oddly neglected as a topic, often relegated to a footnote or subheading of mental health law.  Social care detention is fundamentally different to mental health law, it is neither less coercive nor less socially, politically or ethically fraught, it is simply different and deserves consideration as a socio-legal phenomenon in its own right. 

And finally, I wrote it because I think some dilemmas of social care detention spell trouble for human rights more generally. The government recently cited it as an example of why the Human Rights Act 1998 should be repealed. 

How did I go about doing this research?

The book began as a chapter for a biography of the Mental Capacity Act 2005 (which I am still working on!!).  However, it rapidly outgrew this, becoming an article, then a short book, and eventually quite a long book …  

The research is partly literature based – trying to understand what we even mean by the concept of an ‘institution’ and how this is structurally counterposed to how we understand ‘home’.  But it also draws on archival research and is informed by research interviews with people who were actively involved in deinstitutionalisation.  

I also explored the extent to which social care detention was recognised and regulated in other jurisdictions and in international human rights law.  What is happening here is a critical node in a global development, with far reaching ripple effects.

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