In less than 48 hours, I swung from terrible despair and fear to triumphant relief and for what? If anyone from the social care field is reading this post, I would genuinely be interested in your theories of how things can change so dramatically, and so suddenly.I don’t have a theory which can account for what happened in Mark’s particular case, but I do have a theory of why these types of scenarios occur in social care with greater frequency than one might hope. It’s called the problem of domination. [Edit: 14/11/2012: see Mark's response to this post here]
What is domination? What are its effects?
The problem of domination is a problem central to republican political philosophy. To be dominated is to be exposed to potential arbitrary interferences with your freedom by another agent or organisation. Unlike traditional ways of thinking about liberty, the issue is whether this agent or organisation potentially interferes with your freedom – even if in practice they actually don’t. Republicans explain the significance of potential interferences with liberty by describing the situation of a slave in a slave-owning society, or a woman in a society where women have few rights, yet their owner or husband in practice treats them reasonably well. According to republicans, these slaves and wives are not free, because they will always have in mind the potential for their owner or husband to treat them badly without any repercussions, and this will shape their behaviour and their consciousness as they strive to continue to secure the goodwill of those that dominate them. Pettit (quoting one of my favourite writers, Mary Wollstonecraft) describes how this produces a mindset where people have to bow and scrape and ingratiate themselves to fend off potential interferences, and those who are too assertive may face repercussions. This passage from the Neary judgment suggests that Mark experienced this fear of what could potentially happen if he rocked the boat:
Speaking of his relations with the social worker, he said that he found them quite awkward ever since the meeting in January where the idea of reviewing the support package was brought up. He said that this fear remained "tattooed on my brain" and from that point on he was worried about the consequences of rocking the boat. Indeed, when he finally put his foot down on 9 July, and directly asked for Steven's return, Hillingdon's immediate response was that the necessary support package would not be made available. Mr Neary became understandably emotional when describing how powerless he had felt. Dependency within a relationship
One of the key ingredients of domination is dependency or, as Lovett (2010) puts it, ‘high exit costs’ on a relationship. Lovett and Pettit are clear that dependency is not in itself domination, and that dependency is not necessary a ‘bad’ thing. There are many positive relationships which carry high exit costs and involve a degree of dependency – the relationship between a child and his parents, between people that love each other. The point isn’t that dependency is bad; the point is that when it is difficult to escape a relationship it is also difficult to escape any arbitrary interferences which your choices and freedoms which that might bring.
When people have ‘needs’ for support from their local authority, needs which cannot be met in any other way, this renders them dependent on the local authority for support. In itself this need not be problematic. In fact, support offered through social care services potentially enhance a person’s substantive freedoms to enjoy various ‘capabilities’ in the world, such as health, work, leisure, relationships. But a person’s substantive freedoms can be enhanced whilst they are still dominated in a republican sense. The economist and development theorist Amartya Sen (2010) gives the following examples to highlight the differences:
Case 1: Person A [who is disabled] is not helped by others, and she is thus unable to go out of her house.According to Sen, the person in Case 1 is unfree on a capabilities approach because they enjoy no substantive freedom to go out the house. In Case 2 the person is free in a ‘capabilities’ sense because they can go out the house, but they are unfree in a republican sense because they are dependent upon the goodwill of others or the social security system offering the goods. Only in Case 3 would republicans and capabilities theorists both agree that Person A is ‘free’, because their ‘capabilities’ are resilient to the arbitrary decisions of others.
Case 2: Person A is always helped by helpers arranged either by a social security system in operation in her locality (or, alternatively, by volunteers with goodwill), and she is, as a result, fully able to go out of her house whenever she wants and to move around freely.
Case 3: Person A has well-remunerated servants who obey – and have to obey – her commands, and she is fully able to go out of her house whenever she wants and to move around freely.'
Certain recent developments in social care look a lot as if they’re trying to shift people to something more like Case 3. Several ideas central to personalisation – particularly using a Resource Allocation System (RAS) to produce an ‘indicative budget’ and then giving that to a person to purchase care with were initially conceived of to reduce the arbitrariness of local authority decision making in social care. The problem, as I wrote about in a paper with Luke Clements which we’ve recently submitted for publication (fingers crossed!), is that RASs didn’t achieve this – instead local authorities just applied arbitrary decisions to how their RAS worked and whether they were going to pay any attention to it or not. Sen’s point is this though – if you are reliant on a local authority’s discretionary decision making to provide you with the support you need, you are potentially subject to domination even if – in practice – they are currently offering the goods. The problem is, as Baroness Jane Campbell eloquently described, users of care services are 'only a few bureaucratic decisions away' from losing all the substantive freedoms which enable them to enjoy basic human capabilities like home, family life, health, leisure and work.
Clear and well known principles for interferences in choices and freedoms
Republicans argue that interferences with choices and freedoms aren’t themselves the problem, the problem is the extent to which those interferences are arbitrary. Arbitrariness can be limited by providing clear principles which permit particular interferences. The importance of constraining discretion by use of clear principles will be familiar to public law and ‘rule of law’ theorists. So on this view, if a local authority is going to reduce or alter a package of care, that’s fine – so long as it is in line with clear principles. It is important that these principles aren’t only clear to the local authority, however, but to everybody else involved in the system – including those reliant upon the system, and those who are enforcing the system (on which more below). Those using the system need to understand the principles so that they can plan their lives around potential interferences, and not live in fear of arbitrary decisions which have the result of turning their lives upside down arriving out of the blue.
Do we have this in social care? The following passages from the Law Commission’s (2008) scoping report on Adult Social Care suggest probably not:
‘One consequence of the piecemeal development of adult social care law is the sheer volume of legislation. It is estimated that there are currently over 30 Acts of Parliament dealing, to varying degrees, with adult social care... There is also a vast array of regulations, directions, circulars and guidance – often covering the same or similar issues... Added to this are: the National Service Frameworks; targets; performance indicators; and auditing regimes... The sheer volume of law makes it virtually impossible for service users, carers and even social workers to have a detailed knowledge of all of the various legal enactments and to keep up to date as the law changes... A further consequence of the piecemeal development of adult social care law is its often baffling complexity, a point that has not been lost on the judiciary. The following quotations are from three separate judgements:
We cannot conclude this judgment without expressing our dismay at the complexity and labyrinthine nature of the relevant legislation and guidance, as well as (in some respects) its obscurity. Crofton v NHS Litigation Authority (2007)
Some of the worst, if indeed not the worst drafted and most confusing subordinate legislation it has ever been my misfortune to encounter. R v Liverpool Health Authority (2002)Throw into the mix also the unpredictability of mental capacity assessments and best interests decisions under the Mental Capacity Act 2005 and the notorious complexity of the deprivation of liberty safeguards, and you have a recipe for domination. That is to say, the landscape is prepared for decision making which will have major repercussions for people’s lives whose quality is reliant upon the goodwill of social care professionals and is not effectively constrained by any clear principles. The point isn’t that social care professionals themselves lack goodwill, the point is that the structure within which they operate means that people can reasonably fear that if they did lack goodwill there would be few clear principles a person affected could point to in order to explain why a particular decision was faulted.
In the course of this judgment we have used the term “paper chase”, and have done so advisedly. This important area of law governs the scarce use of public resources in a difficult and sensitive field … One part of the overall scheme has had to be litigated in the House of Lords. Now this part, closely related, has had to be litigated in this court. No doubt there are great pressures on the legislators. But the distribution of responsibility which is at the core of this case could surely have been provided much more clearly and simply. R (AW) v Croydon LBC and Hackney LBC (2007)
Principles for interferences in choices and freedoms are effectively enforced by external agents
Even if the principles for decisions which have major repercussions for people’s lives and freedoms were clear, the republican prescription for non-domination does not end there. They must also be effectively enforced by some kind of external body. On a republican view, internal complaints mechanisms are only effective to the extent to which they are truly independent of the original decision, and have an understanding of the principles which are meant to constrain those decisions. How many local authority complaints panels, do you think, fully understand an area of law which judges themselves find difficult to understand? On their independence, I have no idea, but republicans would certainly be suspicious about their being within the same organisation.
Republican philosopher Philip Pettit (2008) talks about the importance of a person being able to ‘invigilate’ any interferences with his affairs, by use of some external institution. Lovett talks about use of appeals mechanisms. In the context of social care these are slightly problematic prescriptions. They are what you might call ‘self-starting’ mechanisms, they require the person affected by the arbitrary decision to a) recognise that it is arbitrary; b) recognise that they have grounds to challenge it; c) have access to some external body to effectively challenge it through; d) be able to challenge it; e) be willing to challenge it. Because the principles which govern social care decision making are so unclear, most people will fall at the first and second hurdle, and simply accept some crappy decision (“we’ve decided to halve your package of support because of the RAS, sorry your needs will now be unmet”; “we’ve decided to plonk you in this service hundreds of miles from your family without provision for visits, sorry about your Article 8 rights”; “we’ve decided to bang you up in this care home against your wishes and sell your house to pay for it, deprivation of liberty safeguards – what deprivation of liberty?”). Those who realise there is a problem may struggle to find an external body they can appeal to who can act quickly enough to remedy the problem. Judicial Review can be quick, but will depend upon the availability of legal aid or liquid personal resources a person is able to deploy for litigation. The Local Government Ombudsman is free, but you have to exhaust internal complaints first and it might take many, many months before an investigation is complete (by which time a decision may have been implemented), and the local authority can ignore their recommendations anyway. The problems with using the deprivation of liberty safeguards to mount an appeal are numerous, too many to describe here.
But even if there is a forum to appeal to, and even if there are clear grounds to appeal upon, a person will still need to be able – in a practical sense – to trigger this process, which will not be the case for many, many users of social care services. Provision of advocacy would be a clear strategy for dealing with this, or making the fora for appeals more accessible, but advocacy provision is declining and the Law Commission (2010) were explicitly precluded from looking at effective methods of user redress such as social care tribunals in their adult social care research. And even then, even if you knew there was a problem and you had somewhere to take it, unless you had faith that the local authority could not arbitrarily interfere with your future choices and freedoms in revenge or whatever, you might, like Mark Neary, find that fear of the consequences of rocking the boat remains ‘tattooed on your brain’.
What to do about domination in social care?
To reiterate, the problem here isn’t the goodwill of individual professionals, the problem is the wider structure within which they are operating which means that the potential for a lapse of goodwill, or the potential for just a crap decision, is ever-present. Domination is structural, not personal. The fact that many social workers make good decisions, that some DoLS teams do excellent work, is beside the point – the point is that if there was a staffing change, or staff came under new pressures to make less good decisions, service users would be vulnerable to poor decisions without any clear means of redress. For people like Mark Neary, like thousands of social care service users, no wonder this leaves them feeling vulnerable and with ‘trust issues’. If you are a social care professional the question of trust probably isn’t about you per se, but about trust in the wider system. In my interviews with parent carers of people with learning disabilities, it was striking how long a shadow a poor decision in the past could cast over their view of social services in the present. Subject to the continuous flux of policy and guidance, the unclear and ever-changing principles guiding decisions, they felt like lives tossed about in the sea. When they happened upon a good social worker or care manager it was a life-raft, not solid ground.
The solution is simple: social care provision (including powers to provide services, but also decisions made under the Mental Capacity Act and the deprivation of liberty safeguards) must be sufficiently clear so that not only lawyers, not only professionals, but also service users understand them. Hopefully the new adult social care statute will help to change that, but work must be done to ensure that service users and their carers fully understand their rights under this system. Any rights must be resilient to individual decision making. There must be effective and accessible fora for challenging poor decisions, and those who have trouble accessing those fora must be routinely provided with support to enable them to do so. The prescription is simple, filling it is not.
LAW COMMISSION (2008) 'Adult Social Care Scoping Report', (192: TSO) pp19-21
LAW COMMISSION (2010) Adult Social Care: Outline of our Proposed Adult Social Care Statute (Law Com No 326, HC 941, TSO, London) (on tribunals, see paragraphs 12.37-12.38)
LOVETT, FRANK (2010) A General Theory of Domination and Justice (Oxford: Oxford University Press).
PETTIT, PHILIP (1997) Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press).
PETTIT, PHILIP (2008) 'Republican Freedom: Three Axioms, Four Theorems' in Laborde, Cécile & Maynor, John (Eds.) Republicanism and Political Theory, (Oxford: Wiley-Blackwell)
SEN, AMARTYA (2010) The Idea of Justice (Cambridge, MA: Harvard University Press).