I'm delighted to host this piece by John Leighton, who has taken a look at DoLS-judgments through a narrative lens. As well as being an interesting and entertaining piece, John's narrative approach draws attention to the ways in which judgments are constructed in terms of presentation, persuasion, authorial presence and absent voices.
John is an MCA/DOLS training manager at Cambridgeshire County Council. He is an MCA Development Manager at the Social Care Institute for Excellence. He has managed Adult Mental Health services in London and the East of England
I would like to take some time to reflect on your post below (Deprivation of liberty: The case for a statutory definition dated April 17th). Thank you for such an informed post; I feel that I can only paddle in shallows in reply and I would like to offer a more general thought on the perspective of the deprivation of liberty safeguards.
Suppose that I have a friend who is an avid and astute reader of narrative fiction; indeed, she reads nothing else. My friend visits me and asks me if I have anything to read. Naturally, all I have in the house is a selection of deprivation of liberty case law, from which she selects Cheshire West and Chester Council v P. She sits down to read it, believing it to be a piece of narrative fiction, rather like the characters in the James Thurber story who, only used to reading detective stories, read Macbeth as a murder mystery.
My friend starts reading and soon realises that this is no ordinary piece of fiction. She has, however, read Robbe Grillet and Perec and so she is not too flummoxed. She is also familiar with the concepts of narratology. As she has only read narrative fiction she does not know that Lord Justice Munby is a real person: to her, he is one of the narrators of the text, rather like Lockwood or even, but not quite, Nick Carraway. Moreover, she is unaware of the ‘real’ P who lives in a real place somewhere in Cheshire. To her, ‘P’ is just a character in the narrative that is narrated by another character, called “Lord Justice Munby”.
As she reads, she becomes aware of several features of the text as other characters are introduced. The text is essentially made of up three separate narrations of which ‘Lord Justice Munby’ is the primary narrator and, indeed, lead (internal) focalizer. His narrative begins with reference to a character called Baker J who appears to be the protagonist (or perhaps, antagonist). All other characters are presented through “Lord Justice Munby"s’ focalization; at one point he appears to threaten to place one character “Mr Gordon” in a police cell [§ 42]. The narrative has a sophisticated structure; “Lord Justice Munby” frequently shifts the narrative to different levels, introducing several periods of analepsis into the text, as well as a number of metadiegetic secondary narratives, including the story of Lucy and Lucinda:
Suppose that there are two children of the same age in the playpen, one the mother's own daughter, Lucinda, the other, Lucy, a girl placed in her care by the local authority as a foster child in accordance with the provisions of the Children Act 1989. In relation to Lucinda the mother has parental responsibility as defined in section 3(1) of the Act. In relation to Lucy she does not have parental responsibility, only the much more restricted powers conferred by section 3(5). The local authority is responsible for Lucy's placement with the mother but has no responsibility at all for Lucinda. It would surely be absurd to suggest that Article 5 is engaged in Lucy's case but not in Lucinda's, let alone to suggest that Lucy is being deprived of her liberty while Lucinda is not. [§ 43]
My friend continues reading and finds that the plot of the narrative appears to centre on the character known as P, and more precisely, on various actions that are carried out on P. At this point, my friend seems to become uncomfortable in her chair, for the narrative seems to take an odd, rather dark twist. The narrative discusses P’s condition and the various actions and restraints that are performed on P. The narrator even discusses whether or not the actions that are performed on P can be considered ‘normal’: at no point however, does the narrator explain precisely who is carrying these actions out. Whoever they are, they are more actants rather than characters. It is true that there are references to an undefined body called ‘the local authority’ but the narrator never goes beyond this. There is no reference in the narrative to a specific individual or individuals involved, no reference is made to any one person. All the narrator does is indicate that the restraints imposed on character P are undertaken by unspecified individuals who are, in some fashion, connected to an organisation called ‘the local authority’.
We can imagine that my friend stops reading, looks up and asks, ‘Is this by Kafka?’
Of course my friend suffers from a limited range of reference and is being unfair. Case law is written in the way it is for a reason, and the Judge is not creating a text of narrative fiction. Even so, there may be some unease here. Cases such as Cheshire West and C v Blackburn and Darwen are social care cases, and yet within the narrative the actual social care agent/actor is mostly absent. This leads to a peculiar depersonalisation of the social care actor. The volitional agency that undertakes the hands on restraint or determines the actual arrangements is missing from the narrative. This happens often and elsewhere. It is a common place in case law to ask whether the ‘arrangements amount to a deprivation of liberty’ as if the arrangements occur by themselves without instigation (for one instance among many, see P & Q v Surrey County Council & Ors  [§ 1]).
In the story of Lucy/Lucinda the narrator comments:
It would surely be absurd to suggest that Article 5 is engaged in Lucy's case but not in Lucinda's, let alone to suggest that Lucy is being deprived of her liberty while Lucinda is not. [§ 43]
With respect to the narrator, one might pause for a moment and wonder why this absurdity would be so? I provided personal care to man with a significant intellectual disability. In a moment of resistance he looked at me: ‘you’ he said, ‘are not my mother’. I realise that all social care professionals have anecdotes to suit all situations, but this is the point that may lead to disquiet about Cheshire West (and Blackburn and Darwen for that matter). It is not enough to say that the regime would be the same wherever P is or that it is normal for anyone with P’s condition. It is not enough (following Lucy/Lucinda) to say that the family carers would have to provide care in the same way. It is not enough to say this because I am not his mother.
The comparator proposed in Cheshire West places P in relation to someone like P, or ultimately P himself. I suggest this removes the essential dynamic between the carer and cared for, and this dynamic is all liable to all sorts of psychological and political valances: the very fact that the carer is contracted and paid to provide the care alters the dynamic. The family agent and the care agent are not equivalents even if the care actions undertaken by them are the same (because P has the same needs wherever he is).
This suggests another perspective on DOLS. The DOLS question is often posed as ‘is this person being deprived of his/her liberty?’ Again, this is the passive voice: the detaining agent is absent. Turn the question round and we ask ‘are we depriving this person of the liberty?’This may look like the same inquiry, yet the focal point has been significantly altered. Deprivation is something that is ‘done’, rather than ‘done to’. The question is one of authority for an action or an arrangement. Do we have a sufficient statutory justification for our actions?
The definition of deprivation becomes a negative: deprivation applies to those actions that cannot be justified by existing statute. This saves the need to wrestle with a positive definition. The safeguards kick in when the rest of statute runs out. This would include the so-called ‘wider’ MCA sections 4,5,6 which as they may be read, refer to restraints in relation to individual acts of care or treatment. That is, for individual acts where we are unable (due to incapacity) to gain the person’s consent. If these differing and individual acts of restraints are so pervasive that they require ongoing care planning (rather than intermittent ‘one offs’) then we could argue that the requirement of consent is now too burdensome to be overcome by the ‘proxy’ consent supplied by MCA 5&6. Perhaps the Council of Europe's Commissioner of Human Rights is claiming a similar point.
Your helpful list of definitions I think can be read in these terms. Are there circumstances in which, if we carried out such an Act or made such an arrangement, we would be covered by existing statute? If not, we need to seek further authorisation and consider the safeguards (which is the extent of the managing authority’s initial concern). The key DOLS question in social care practice is ‘what is the statute that justifies what we are doing?’ I am, as is obvious by now, not a lawyer; I’m not even a Judge; if I were still managing a care home, this is the question I would stick above my desk.