![]() ![]() A broader definition of deprivation of liberty, encompassing more people in settings not subject to DoLS administrative procedures, would have a significant impact on the courts and public bodies, since these entailed costly judicial authorization at least annually ( Salford City Council v BJ EWHC 3310 (Fam)). Each lived in settings outside of the recognized ambit of social care detention at that time: P in a supported living style service and MIG with her foster carer. The courts were not neutral observers in this litigation a lot hung on whether MIG, MEG or P were deprived of their liberty. The judiciary themselves were divided in their approach. For reasons I shall explain in the next chapter, he argued that MIG, MEG and P – among others – were deprived of their liberty, despite the significant repercussions this would have for his own office. Throughout this period of litigation, the office of OS was held by Alastair Pitblado until his death in 2018. This ‘hidden law maker’ ( Montgomery et al, 2014) represents the perceived ‘best interests’ of his clients, not necessarily the arguments they might wish him to make ( Ruck Keene et al, 2016). Most were represented by the Official Solicitor (OS), a public official based in the Ministry of Justice who acts as litigation friend of last resort for people considered to lack the capacity to litigate. Care recipients themselves played a less directly instrumental role in the litigation. Disability and human rights organizations weighed in as interveners, arguing mainly for a more expansive interpretation of deprivation of liberty. Families and friends of older and disabled people made their own arguments, as custodians or liberators of the person, as to whether they were deprived of their liberty or not. The key players in this litigation include the public bodies responsible for arranging care and securing appropriate safeguards for any care arrangements amounting to a deprivation of liberty primarily local authorities but also some NHS bodies. Rather I am interested in attending to the rhetorical ( Harrington et al, 2019) and discursive tactics of key players in the deprivation of liberty game, as they sought to fix the boundaries of the law of institutions in new terrain beset with controversy, ambiguity and paradox. ![]() I do not offer here a doctrinal analysis of the legal rules for determining deprivation of liberty prior to the Supreme Court decision – I doubt any clear analysis is possible. Its heterogeneity was mirrored in highly variable rates of DoLS applications, as different hospitals, care homes and supervisory bodies adopted their own working definitions ( Series, 2013). Space precludes a detailed survey of the mess of complex and contradictory case law preceding the Supreme Court’s judgment in Cheshire West (see: Allen, 2012 Ruck Keene, 2013). ![]() For most, this was a ‘hitherto unknown question’ ( Allen, 2009: 19), a new game without written rules or clear traditions of practice, to secure or repel the law of institutions in the community through persuasion and other tactics.īournewood triggered extensive litigation on the meaning of ‘deprivation of liberty’ for a wide variety of post-carceral living arrangements. Suggestions that people might be ‘deprived of their liberty’ by community care arrangements were outliers, curios for legal enthusiasts ( Brearley et al, 1980/2001: 68). ![]() Yet this question did not come naturally to the inhabitants of the post-carceral landscape of care, its very meaning imbued with liberation from the legal and institutional structures of the carceral era. The Bournewood case posed a new question of vast numbers of people in hospitals, residential care and other ‘community’ settings: is this person deprived of their liberty? If so, the DoLS or some other formal authority was needed to regulate the situation. ![]()
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