Care Paid and Unpaid: Social, Economic and Human Rights Concerns

by Dr Joan Garvanwww.maternalhealthandwellbeing.com

Attempts to achieve gender equity have reached a new high water mark and the recognition and redistribution of care, both paid and unpaid, stands at the centre of this arena. The Australian secretariat – Economic Security 4 Women – have produced landmark reports, both scoping and quantifying the value of the ‘care economy’ and, more recently, Professor Marilyn Waring addressed the topic of care and dignity in the annual Pamela Denoon Lecture Series. Here below are key points from these papers and central messages made by Waring.

Two significant Australian reports on the care economy have been produced over recent years: Scoping the Australian Care Economy A Gender Perspective (2010) and Counting on Care Work in Australia (2012). These projects are concerned with the lifelong economic well-being of women. Though they are particular to Australia and reference local government policies, programs and strategies, they draw from an international body of research and deal with common concerns.

The first report references the importance of data collection and brings attention to landmark work in the Massachusetts case study that used United States Census and Time Use data to measure both paid and unpaid care work [1]. The author Valerie Adams notes tensions between unpaid work, voluntary work and paid work. She draws attention to the ‘relational’ nature of care work, and references the concept of ‘provisioning’ for human need. The report used the notion of ‘care work’ to depict both the paid and unpaid sectors. Adams considers definitions and current issues in the Australian care economy. She surveys relevant government policy and makes numerous recommendations for further research and data collection.

Counting on Care Work in Australia (2012) further develops this arena by quantifying the value of the paid and unpaid care sectors to the Australian economy. In 2009-10 twenty per cent of all paid employment in Australia was in the care sector. Care workers receive 96 cents for every dollar earned by the average Australian worker, and female workers earn on average 84 cents in the dollar to male care workers. The report valued the unpaid care sector at $650 billion with sixty per cent of this contribution being made by women aged 25 to 64. The report furthermore outlined and quantified government investment in the care sector. The authors make recommendations for further work in light of: demographic change; inter-generational concerns; and the continuing economic and life course implications for women.

Marilyn Waring prefaced her recent lecture Care and Dignity: Major challenges to economics and human rights (transcript and video available online: http://pameladenoonlecture.net/) with the proposition that over millennia care has been the primary responsibility of women. She has changed her emphasis since the publication of Counting for Nothing: What men value and what women are worth (1988) [2] and now frames these concerns within a Human Rights perspective.

Waring raised problems for the use of ‘care’ as an analytical category, arguing that most often carers are responsible for a myriad of associated tasks that could be lost through a continuing association with unpaid work. Nevertheless, drawing from studies from British Colombia, New Zealand, Papua New Guinea and the United Kingdom, she sets out a strident case whereby the human rights of care givers are being flouted. She and others set up a questionnaire for a Commonwealth report drawing from Amartya Sen’s capability approach to human rights which references choice, rest, health, meals, work and political involvement, and found multiple breeches.

With governments around the world withdrawing from social and welfare programs these kind of arguments are critical if we aren’t going to ‘throw the baby out with the bathwater’. Care, both paid and unpaid, are clearly significant to the health and well-being of the community, but further to this gender equality will remain allusive if we don’t see transformational change. Unfortunately the issues are complex and though there is increasing reference to the work of unpaid care in terms of achieving gender equity, there is a need to bolster and popularize the debates.

References

[1] Albelda, R., Duffy, M., Folbre, N. (2009), Counting on Care Work: Human Infrastructure in Massachusetts, University of Massachusetts, MA, Massachusetts

[2] In a recent anthology, Counting on Marilyn Waring: New Advances in Feminist Economics, edited by Margunn Bjornholt and Ailsa McKay, 31 authors from nine countries outline the wide ranging impact and resonance of Professor Waring’s work as well as the current frontiers of feminist economics.

 

 

What’s Wrong With Best Interests?

For the last while, I (along with many others working in this area)[1] have been struggling with the question of how to reconcile the Mental Capacity Act 2005 (MCA), with Article 12 of the UN Convention on the Rights of Persons with Disability (CRPD). As many readers of this blog will know, section 1(5) of the MCA requires that any decision made for or on behalf of a person who lacks capacity needs to be made in their ‘best interests’. In contrast, Article 12 CRPD requires that disabled people’s rights to equal treatment under the law are respected. This right includes the right to “enjoy legal capacity on an equal basis with others in all aspects of life” (Article 12(2)). In their clarificatory General Comment No 1 on the scope and interpretation of Article 12, the Committee on the Rights of Persons with Disabilities made clear that “The ‘best interests’ principle is not a safeguard which complies with article 12 in relation to adults” (paragraph 21).

Given the centrality of best interests decision making in contemporary English mental capacity law[2], we need to give serious consideration to how these two, seemingly opposing, positions can be reconciled. In order to get to that point, it will be helpful to think through the critiques of best interests.  Five substantive critiques of best interests have been put forward in the academic literature on this topic. Firstly, best interests decision making can be “vague, uncertain and unpredictable.”[3]  Because of this, it is very difficult to predict what the outcome of a best interests determination will be. There is usually no single, logical, best outcome in the difficult cases where best interests are to be addressed. Courts, healthcare professionals, social workers and carers instead select from any number of possible outcomes.

Best interests decision making is often paternalistic, and imbued with the beliefs and values of the decision-maker, rather than those of the person who is at the centre of the decision.[4]  A third critique of best interests, originally put forward in the context of family law,[5]  is that it may be incompatible with Article 8 rights to respect for private life, family life and home. This may become especially troublesome when considering things like residential placements,[6] whether or not these amount to a Deprivation of Liberty under the legislation (another big issue in contemporary mental capacity law).

The CommitteeRPD raise two further issues with best interests decision making. They argue that ‘best interests’ denies legal capacity on the basis of disability. This can take three forms, where legal capacity is denied because of: the status of the individual as having a particular diagnosis or impairment; the outcome of a particular decision is perceived to have negative consequences; or on functional grounds the person is not considered capable of making a decision. This functional approach is very close to the MCA understanding of capacity. Under the MCA, whenever a person is determined to lack capacity under the functional test set out in section 3, another person makes the decision instead, taking into consideration the views of that person, their family carers and the professionals involved in their care. The CommitteeRPD’s criticism of the functional approach is enlightening:

“This approach is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right — the right to equal recognition before the law. In all of those approaches, a person’s disability and/or decision making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law.”  (Committee RPD, General Comment no 1, para 15)

A final critique of best interests is that it substitutes someone else’s decision (whether a health care professional, a judge, a social worker, a carer, or a family member) for that of the person with a cognitive impairment. Article 12 of the Convention on the Rights of Persons with Disabilities, by contrast, requires that people are supported to make their own decisions. Only when all practicable means to support the person to make their own decision have been exhausted would a decision be made on their behalf, in accordance with the best interpretation of their will and preferences, following Article 12(4).

Could this mean the end of best interests in our mental capacity law? Perhaps. If we take these criticisms of best interests seriously, it may well be that we need to re-think best interests under the MCA to ensure our compliance with the rights of persons with disabilities under the CRPD. There appears to be little appetite for a change to the language of best interests under the MCA. Instead, the focus of the House of Lords Select Committee was on better implementation of the empowering ethos of the legislation. But a key problem, as I see it, with the implementation of the MCA is the way that MCA best interests are routinely conflated with clinical understandings of ‘best interests’ despite the different normative content of the two approaches. As a result, it seems clear that we do need to find a new lexicon for decision making by, with and for people with intellectual disabilities, one that doesn’t rely on the words ‘best interests’, to ensure that supported decision making is the reality in all but the most difficult of cases. And when a person truly can’t make a decision for themselves, it must be their own preferences and values that guide the decisions made on their behalf. The task ahead is to find that lexicon, and to use it to build a new approach to empowering individuals with intellectual disabilities to shape their lives according to their own values, wishes and preferences.

[1] Flynn E & Arstein-Kerslake A ‘Legislating personhood: realising the right to support in exercising legal capacity’ (2014) 10 International Journal of Law in Context 81; Richardson, G ‘Mental Disabilities and the Law: From substituted to supported decision-making?’ (2012) 65 Current Legal Problems 333; House of Lords Select Committee on the Mental Capacity Act (2014) Mental Capacity Act 2005: Post-Legislative Scrutiny (London: TSO).
[2] Donnelly, M (2009) ‘Best Interests, Patient Participation and the Mental Capacity Act 2005’ Medical law Review 17: 1-19.
[3] Choudhury, S (2008) ‘Best Interest in the MCA 2005 – What can Healthcare Law Learn from Family Law?’ Health Care Analysis 16: 240-251.
[4] Fennell, P (2008) ‘Best Interests and Treatment for Mental Disorder’ Health Care Analysis 16: 255-267.
[5] Eekelaar, J (2002) ‘Beyond the welfare principle’ Child and Family Law Quarterly 11: 387.
[6] Harding, R (2012) ‘Legal Constructions of Dementia: Discourses of autonomy at the margins of capacity’ Journal of Social Welfare and Family Law 34(4): 425-442.

Making Law Liveable? Bringing feminist knowledge of care into the curriculum

Note: These comments were originally written for a talk I gave at ‘Liberation through Law’, an event organized by SOAS Feminist Society and SOAS Law Society, on the 25th February. I am grateful to them, particularly Aleksandra Wolek and Sabeehah Motala, and to my co-panelists, Diamond Ashiagbor, Samia Bano and Linda Mulcahy, for generating such a great space to discuss the role of feminist legal theory in the university curriculum.

My comments arise from wanting to think more about how I draw on feminist activisms and organisations as sources of legal knowledge when I teach. This has been inspired in part by the recent successful campaign against Fiona Bruce’s efforts to outlaw sex selective abortion, which involved a wide range of feminist, health and pro-choice civil society organisations, including the End Violence Against Women Campaign, the Iranian and Kurdish Women’s Rights Organisation (IKWRO), Southall Black Sisters, the Royal College of Obstetricians and Gynaecologists (pdf), Antenatal Results and Choices (pdf), the British Pregnancy Advisory Service (pdf) and Voice for Choice.  As we consider and evaluate the ways in which law regulates reproductive lives, what can we learn from the experience and expertise of feminist civil society?

Typically a key feminist topic like abortion rights is taught in a medical or health law course. And the typical things we talk about are the fact that the Abortion Act, 1967, makes abortion a matter of medical discretion rather than a woman’s decision (Sheldon, 1997). Black letter medical law treats abortion differently from most other kinds of healthcare in that women’s views are not legally relevant. What matters according to the law is whether two doctors believe that a particular pregnancy is more likely to put a woman’s health at risk if continued rather than terminated. This takes abortion out of ordinary health care, which is governed by the doctrine of consent for those who are capacitated to make healthcare decisions, and the doctrine of best interests for those who are not so capacitated. Abortion becomes exceptional and women have to negotiate the discipling effects of that regulation when they need to access abortion care. So teaching about abortion law is a great way to consider how legal paternalism makes reproductive decisions on women’s behalf and uses medical authority to distance women from their own lives.

But abortion law also mobilises old-fashioned coercive power against women and their health professionals. Women who find themselves needing an abortion on terms which fall outside of the Abortion Act, 1967, are criminalized and stigmatized. Sarah Catt, who procured her own abortion by taking the abortion pill after the 24 week time limit, was sentenced to 3.5 years in prison, reduced on appeal from an original 8 year sentence by the trial judge (Prochaska, 2012). The full force of the criminal law was brought to bear on this woman as she tried to control her reproductive life. In criticizing and contextualizing that law I, in common with lots of other teachers of health law, use a variety of strategies. One such strategy is the familiar critical doctrinal strategy of flagging up the inconsistencies in black letter law, and looking to general principles of patient autonomy in other areas of health law. I look to critical engagement with human rights norms as a tool for tackling the inadequacies of abortion regulation. And I look to theoretical arguments about voluntary reproduction as an aspect of women’s equality.

But the point I want to focus on here is that often students are surprised to learn these two things about British abortion law: that doctors’ approval is necessary for non-criminal abortions and that some abortions are still criminal. And their surprise presents teachers like me with an opportunity to raise another important aspect of feminist approaches to law and that is the significance of the gap between law and practice. In practice, in the law of everyday life, the way people experience something like legal access to abortion care can be quite different from the way it’s represented on the books (Lee, 2004). And as scholars of legal consciousness have long argued, that everyday experience of law matters. It matters because actual access has immediate impact on people’s lives. But it also matters because those everyday understandings provide important resources for challenging official accounts in their violent, coercive forms and in their disciplining and governmental forms.

One important reason why there is a gap between law on the books and law in practice in the context of abortion in contemporary Britain is due to the presence and effect of pro-choice abortion providers. The presence of a pro-choice provider like BPAS, which has been providing woman-centred abortion care since 1968, makes a profound difference to women’s experience of abortion law. Their willingness to interpret and implement the Abortion Act in light of women’s life concerns has meant that sometimes at least women experience abortion care as if law is listening to them and taking their concerns seriously. But these vital aspects of women’s experience of law, the presence of feminist civil society organisations who work hard to make law a little more liveable, often don’t make it on to the legal curriculum. Or at least they make it on the curriculum in particular kinds of ways: as initiators of judicial review actions, collaborators in clinical education and providers of legal internships.

So how might I address this when I teach about abortion and law? I’ve been thinking about this anew in light of the recent campaign by a wide range of feminist, health and pro-choice civil society organisations against Fiona Bruce’s effort to criminalise sex selective abortion.  The successful and collaborative nature of the campaign mark it out for attention in the first place; but I’m particularly curious about the ways in which it mobilised feminist knowledge of care practice.  Conservative MP Fiona Bruce, together with Jeena International, Stop Gendercide and Karma Nirvana, was initially relatively successful in mobilising concerns about abortion of female fetuses towards support for an amendment to the Abortion Act, 1967. On 4 November 2014, a majority of 181 to 1 voted in favour of debating an amendment to prohibit sex selective abortion at its first reading. But on Monday 23 February 2015, 292 MPs voted against Bruce’s amendment while 201 voted for, defeating the amendment by a 91 vote majority. Why did the momentum change and what does this change have to tell us about the role of feminist civil society in making law a little more liveable (Cruz 2013: 467 citing Butler, 2010: 31)?

In making the case for the amendment, Fiona Bruce made two arguments which looked like they addressed feminist concerns. The first was that sex selective abortion was harmful and worth prohibiting because it was discriminatory in suggesting that girl fetuses are less valuable. The second was that a prohibition of sex selective abortion would help pregnant women who were being abused and pressured into abortion for reasons of son preference. In response, a number of civil society organisations drew on their collective experience of working with women who seek access to abortion care and with women who have lived with violence. In one important intervention in a letter on 19th February, a wide range of people argued that the amendment would have the effect of criminalizing women and their doctors for sex selective abortion, that criminalisation does not help women who are experiencing sexist abuse and pressure, and that funding of support services would be a preferable alternative.

Their arguments reminded us that criminal law itself can be harmful, rather than a means of protecting people from harm, in stigmatising women and preventing them from seeking out help. Others such as Hashmat argued that taking reproductive choice away from a woman in a desperate situation does not tackle the causes of that situation and denies her options in responding to her actually existing reality. These interventions were really good examples of feminist critiques of the carceral state in action and of engagements with a critical harm reduction approach (see further Erdman, 2012; Todd-Gher, 2014; Lamble, 2013; Fletcher, 2014). These kinds of reforms can be dangerous even if they may look to have gendered concerns, because they encourage the punitive state to intervene in women’s sexual and reproductive lives, and are likely to expose women to more rather than less risk.

A second important point was that sex selective abortion is not that prevalent in the UK and is not necessarily a discriminatory decision if and when it does happen. The Department of Health has not identified any evidence of difference in sex ratios and the clinics tell us that women do not report sex of the fetus as a reason for abortion (BPAS, 2015). Fetal sex may be one part of a more complex story as when bringing a girl child into the world at a particular moment may be a threat to a woman’s mental health because she is under significant pressure to have a boy.  In making this kind of argument organisations like BPAS and Voice for Choice remind us of the important of evidence and personal stories in feminist evaluation of legal reform. Concerns about sex selective abortion practices sometimes mobilise a kind of feminist ‘common sense’ that selection must be sexist.  But any such ‘common sense’ needs to be challenged in light of contesting evidence and narrative. We can’t be in a position to decide whether a given practice is actually discriminatory and harmful until we have heard from those experiencing that practice themselves.

Feminist advocacy and care organisations are important legal actors and we could make more of them, with all their imperfections, in the legal curriculum. They provide great examples of legal ideas in practice, as they argue for sexual and reproductive autonomy in a way that is sensitive to diversity and vulnerability. They challenge the reason/affect dichotomy that permeates public debate as they mobilise affective knowledge of women’s experiences towards rational ends. And they show us how to make legal interventions by drawing on feminist experience and expertise while speaking to non-feminist audiences.

Happy New Year – Welcome to 2015 and introduction to Ceri Durham our new administrator

It is perhaps too late to wish you all a HAPPY NEW YEAR given that we are now almost at the end of January, but as the beginning of 2015 is marking a new involvement for me as the administrator for the Revaluing Care Network, I feel it is appropriate to wish everyone a healthy and peaceful 2015 full of lively debate and interesting conversations. I look forward to being in touch with many of you as the year progresses. Particular thanks go to Sue Westwood from whom I am taking over the role, and who I already know will be of assistance in helping me build on her excellent work to date.

I was lucky enough to meet some of you at the ‘Cycles of Care‘ seminar at the end of November, but for those of you who I didn’t, I will tell you a little about me. I am Ceri Durham, a mother of three young children, living in Bow in London’s East End. I am currently undertaking my LLM (Masters in Law) in Medical Law at Queen Mary, University of London. Until October, I was working as a solicitor predominantly doing commercial and private client work for so-called “ultra-high-net worth individuals”. However, in October I took the plunge and left my (paid) work to follow the passion of my voluntary work role as a campaigner for improvements in maternity services (and to do my LLM, of course).

As a maternity rights campaigner, my role splits into two – the complaining activist and the compassionate supporter. I spend much of my time telling anyone who will listen about the perilous issue of women’s choice and birth autonomy in the UK today. I also have the joy of running various birth-groups supporting women as they make their choices and plans for their birth, in particular assisting women who are contemplating giving birth at home and who are finding it difficult to access the information and advice they need to make the decision that is right for them. In my view, even where autonomy and human rights are protected in theory, the women I support tell a different story. Thankfully, even where there have been difficulties, surgery or undesired outcomes, the wonderful birth stories I hear full of joy and laughter from women who have had empowering and life-affirming births, make me know that this is a campaign worth fighting for.

Whilst I believe – and am very grateful – that maternity services in this country are ‘safe’ and will usually result in a mother and baby who are both alive at the end of birth, I feel the emphasis that this is ‘all that matters’ manifests by denying women real choice about their body and the care of their children. Too often there seems to be a tension between consultant (clinical) care and genuine woman-centred midwifery care, and whilst some advances have been made in this area, the fact that an event as natural and as every-day as birth should result in thousands of women each year suffering from avoidable post-traumatic stress disorder, anxiety, depression and social exclusion is something which I feel the need to keep speaking about. That this is all taking place in the midst of NHS cuts and increasing privatisation of the NHS adds further issues to the mix, especially because we know that the models of maternity care which most benefit women, especially those who may be described as ‘vulnerable’, bear little relation to what is offered in practice. Needless to say, if you know anyone who is pregnant or if you would like further information on the campaigns I am involved in, please get in touch. I would love to hear from you.

Ceri.

Dementia, women and sexuality: How the intersection of ageing, gender and sexuality magnify dementia concerns among lesbian and bisexual women

The journal Dementia has just published a paper I have written, ‘Dementia, women and sexuality: How the intersection of ageing, gender and sexuality magnify dementia concerns among lesbian and bisexual women.’  The key points in the paper are as follows:

1. Lesbian, bisexual and heterosexual women are differently impacted by dementia and dementia services.
2. Heteronormative and heterosexist community and residential care provision can compound the difficulties experienced by lesbian and bisexual women living with dementia, in ways which do not affect heterosexual-identifying women with dementia.
3. Those women most likely to require community and residential care provision for individuals with dementia – lesbians and bisexual women – are least likely to have their identities recognised and supported.
4. This may be contrary to Equality and Human Rights legislation and UK social policies.

This is a very important issue, as yet un-addressed by policy-makers, service providers and advocacy organisations. Please spread the word far and wide to raise awareness!

If anyone would like a copy please email me.

Sue Westwood

Cycles of Care: Reflections on Strangeness

We recently held a fantastic event at Queen Mary School of Law in London, with presentations from a number of individuals based on the chapters they have written for our forthcoming edited collection. The papers highlighted how care operates in a wide range of contexts (Ireland-UK abortion travel; HIV/AIDs care in Africa; UK mental capacity regulation; parental leave regulation in Europe; carer regulation in the UK) and spaces (e.g. the home; older age residential care provision; provision for individuals with cognitive disabilities; rural communities; homeless street life; animal rescue centres) in many different ways (informal/formal; voluntary/paid; a blurring of each) and with different actors (e.g. human, animal, environment). Despite, or perhaps because of, this spread of spaces, places and players, a number of fascinating shared themes emerged, one of which, highlighted in particular by participant Donatella Alessandrini was that of strangeness, ‘strangering’ and unfamiliarity.

Ruth Fletcher spoke about stranger-care in the context of abortion travel, locating her analysis in the context of Sarah Ahmed’s work on strangeness (1); Sue Westwood spoke about the feared spatial dislocation into older age care spaces of strangeness and exclusion which concern older lesbian, gay and bisexual (LGB) people; Abigail Baim-Lance spoke about degrees of stranger care in local and extended communities, and the tensions which can exist between formal and informal stranger care; Rosie Harding spoke about the current constructions of UK mental capacity legislation which positions the individual as separate from, and almost a stranger to, her/his personal community/social network; Marie Fox spoke of the abandonment of animals by humans who are not strangers to them, and their care (even at the point of euthanasia) by humans who are; and Helen Carr spoke about companion animals and homeless individuals in the context of the ‘otherness’ of street life. All of these papers spoke to the importance of relationality, context, and the power dynamics which can operate in situations of both strangeness and familiarity.

At the same time the theme of resistance to strangeness also emerged. Ruth Fletcher showed how hosts of Irish women travelling to the UK for an abortion sought to make them welcome and at ease in their own homes and how supporters sought to make the process less unfamiliar (and so less daunting to them). Abigail Baim-Lance spoke of the control of state healthcare systems of informal community carers and the resistance of individuals with HIV/AIDS and their families to the use of formal medication regimes with the use of alternative (ineffective) herbal medicines. Marie Fox spoke of the resistance by volunteers in animal rescue shelters who try and rehome homeless dogs who would otherwise be put down. Helen Carr spoke of how companion animals and homeless individuals can become ‘home’ to one another and as such resist traditional, materialistic, notions of home. Rosie Harding proposed a return to relationally in mental capacity legislation, resisting notions of the autonomous adult. Sue Westwood suggested that a combination of the power dynamics of older age care spaces and age-related dependency upon others placed constraints on older LGB individuals’ capacity to resist heteronormativity and homophobia.

Each of these papers demonstrated in different ways how caring can be both a response to and resistance of strangeness, the unfamiliar, powerlessness and oppression. Marie Fox spoke, at the end of the day, about a man responsible for killing homeless dogs. She described how he both demonstrated a lack of care in his attitude towards killing them, yet a presence of care and compassion in how he did so, and a striking presence of care in how their bodies were incinerated afterwards, being concerned about its implications for our humanity and humane-ness. Marie’s paper highlighted the complexities of care and caring and how it can be a layered and nuanced thing, one which also requires – as all the papers at the event showed – similarly layered and nuanced analyses.

Ahmed, S. (2000) Strange encounters: Embodied others in post-coloniality. Psychology Press.

Veterinary Negligence: Ethical and Legal Perspectives on Formulating a Duty of Care

by Samantha Schnobel

Describing a veterinarian’s professional duty, Bernard Rollin dichotomised the role placing at one end a garage mechanic and and at the other, a paediatrician. Simplistic in design, this analogy gives us pause to consider the ethical and legal duties of care stemming from the triangular relationship created between animal, veterinarian, and owner. Within this triangular relationship, deeply meaningful, bi-directional relationships can occur between animal and owner. An integral part of the veterinarian’s role, therefore, is not simply about animal health (though this is certainly a primary concern), it is also about preserving and fostering the animal-owner bond. In a very important way, then, veterinarians are the final arbiters not only of animal health, but also the caring relationship shared between owner and animal. Expanding briefly on caring relationships within the triangular relationship just discussed there will almost always be a relationship of care between owner and animal. In the first place, the owner, by the act of bringing the animal to the veterinarian in the first place, is exhibiting caring behaviour. Beyond this, the animal is almost wholly dependent on its owner for the basics of life (ie. food, water, shelter, etc.) and the fostering of basic capabilities, which animals experience (ie. emotion, imagination, etc.). Also, by virtue of the veterinarian’s aesculapian position, caring relationships can also be said to exist between owner and veterinarian and veterinarian and animal. Having said that, complications can arise where, for example, the veterinarian is engaged in alleviating the suffering of the animal only to obtain payment of fees. The existence of this incongruous model of veterinary care is arguably what led Rollin to describe a veterinarian either in terms of a paediatrician or a mechanic. Unfortunately, as the below will discuss, the law has played a significant role in forwarding a framework which restricts the development of a more care-based model and rather supports an instrumental view of the veterinarian’s role. The position I take throughout this discussion is that the law should seek to promote a construction of the veterinarian’s duty which supports a much stronger, relational approach.

Currently, then, from a legal perspective, the Cartesian example analogised by the garage mechanic is most accurate. Here, the duty of care is owed solely to the owner and the veterinarian is charged with repairing a mere, commodified “thing.” In essence, the law treats the animal patient no differently than a car, or a table, or any other piece of property. No weight is placed on the relationship shared between animal and owner or the animal’s individual sentience. Instead, the focus is placed on the commercial relationship between veterinarian and owner. Thus, if the treatment is negligently completed, monetary damages can be awarded which would allow the claimant-owner to buy a brand new “thing” of equal value. Because many animals lack a sufficiently high market value to make a professional negligence claim viable, very little attention has been paid to the legal duties of care owed by veterinarians [1]. If, however, courts could be persuaded to make the evolutionary step and acknowledge that an accurate characterisation of the legal relationship between owner and animal is not to be found in the base conception of owner and disposable/replaceable property, but rather more accurately as something far more complex and meaningful, veterinarians could face a considerably higher level of professional scrutiny, particularly at the duty of care stage. In light of several recent stories involving potentially criminal and negligent conduct in the execution of veterinary services, discussion of legal duties of care becomes increasingly important [2].

Current veterinary negligence case law⎯ of which there is admittedly very little in comparison to other analogous professions⎯ disregards an in-depth duty of care assessment, focusing instead on the economic loss sustained by the owner and the breach of duty analysis, which relies heavily on specific factual analyses. The duty aspect is largely forgotten, finding simply that a duty to act reasonably in the given circumstance existed. Such an approach is consistent with an economic theory of negligence which focuses on liability costs, an entrepreneurial economy based on freedom of action, and efficient settlements. What this theory leaves out, however, is the relational aspect both between owner and veterinarian, but also owner and animal, and owner-claimant and judge. According to West and Oliphant, it is adherence to the pursuit of legal certainty and economic efficiency which leads not only to injustice and incoherence, but also a time-frozen, rigid body of jurisprudence, out of touch with prevailing social standards. West’s work in particular focuses strongly on the often-neglected role of feminist and caring theory in tort law and advocates a strongly relational approach not only for judging cases, but importantly in understanding the relationship between all concerned parties.   Lastly, by neglecting the duty of care assessment we lose out on discussion related to how a veterinarian ought to act, as opposed to simply how one did act; thus, much of the normative force behind negligence jurisprudence is lost.

To be preferred is an in-depth analysis at the duty of care stage which focuses on the relationship between the owner and the veterinarian. According to Goldberg and Zipursky and McBride, the duty of care analysis is inherently relational with more onerous and affirmative duties (i.e. the duty to protect against emotional harm and the duty to rescue) attributed to those instances where a strong, pre-tort relationship exists [3]. Importantly for veterinarians, this type of analysis more effectively guides human contact, better preserves respect for the law and better integrates law into a variety of professional settings (Goldberg & Zipursky, 1998). Further, adopting the relational perspective for duty causes individuals to focus on particular aspects of others‘ well-being and to develop an ‘internalised normative pull towards certain sets of actions’ (Goldberg & Zipursky, 1998: p.1831). It is this type of discourse which is sorely missing in veterinary negligence case law and literature.

Building from the above, I would argue that similar to human medicine, veterinarians owe many duties of care stemming from positive acts and omissions. More specifically, duties could stem from treatment and diagnosis, disclosure of risk and duties to warn. Where there is a strong pre-tort relationship, there may be duties to rescue and duties to protect against the infliction of emotional harm. When this is combined with concerns with for the animal patient, difficult situations arise for which veterinarians have either very little guidance [4], or inaccurate guidance.

In order to effect meaningful change in this area and provide veterinarians with a more clear sense of their legal duties, I would argue, following Oliphant and West, that the mechanical application of rules and insistence on institutional consistency⎯ especially those relating to a law and economics perspective⎯ should be rejected. In its place, the judiciary should adopt a duty of care analysis based on the identification of relevant factors derived from a holistic, compassionate assessment of individual cases, paying particular attention to the nature of the relationships between veterinarian, owner, and animal. It is only through this type of high-level analysis based on underlying values and fundamental principles relating to our duties to others that conduct can be shaped and the interests of all parties can be given more meaningful consideration. To what extent the ethic of care could inform development in this area is thus a legitimate and thought-provoking question warranting greater attention.

Samantha Schnobel, Birmingham Law School
sxs987@bham.ac.uk

Samantha is a doctoral candidate and teaching assistant at the University of Birmingham. Her primary research interests lie in the fields of professional negligence and ethics, specifically in the areas of human and nonhuman medicine. Her doctoral research focuses on the legal and ethical considerations pertaining to the duty of care in human and non-human health-related negligence claims. Additional research interests lie in animal welfare and property theory, in particular sentient property and the interaction between property and personhood found in the work of Margaret Radin

http://www.birmingham.ac.uk/schools/law/staff/profile.aspx?ReferenceId=46994

[1]  In a negligence claim, it must be established that the defendant owed the claimant a duty of care. This is in addition to damage (ie. property or personal injury), fault, and causation. Essentially, the duty of care question asks whether the defendant owed the claimant a duty to take reasonable care to avoid or protect her from the type of harm suffered.

[2]  Campbell, E and Boyd, D 2014 Fort Worth Vet Accused of Keeping Dog Alive for Blood Transfusions Star-Telegram, viewed 10 August 2014 <http://www.star-telegram.com/2014/04/29/5776574/fort-worth-vet-accused-of-keeping.html> accessed 10 August 2014. and Taylor, S 2014 Family’s Dog was Put Down by Mistake at Worcester Vets Practice DJB Denny Worcester News, viewed 10 August 2014 <http://www.worcesternews.co.uk/news/11308972.Family_s_dog_was_put_down_by_mistake/>

[3]  This type of relationship could be said to exist where, for example, the veterinarian has served as the animal’s veterinarian for a specific condition for some time prior to the alleged tortious incident.

[4]  Evidence of this can be seen in the high number of practice standards enquiries at the Royal College of Veterinary Surgeons. See: Royal College of Veterinary Surgeons 2013, The Annual Report of the Royal College of Veterinary Surgeons: Part 2 RCVS, viewed 15 August 2014 < http://www.rcvs.org.uk/publications/rcvs-facts-2013/?destination=%2Fpublications%2F>; Royal College of Veterinary Surgeons 2012, The Annual Report of the Royal College of Veterinary Surgeons: Part 2 Royal College of Veterinary Surgeons, viewed 15 August 2014 <http://www.rcvs.org.uk/publications/rcvs-facts-2012/?destination=%2Fpublications%2F%3F%26p%3D2>. See also: Batchelor C.E.M. and McKeegan D.E.F. 2012, ‘Survey of the Frequency and Perceived Stressfulness of Ethical Dilemmas Encountered in UK Veterinary Practice,’ Veterinary Record vol. 170 p.19.

References

Batchelor C.E.M. and McKeegan D.E.F. 2012, ‘Survey of the Frequency and Perceived Stressfulness of Ethical Dilemmas Encountered in UK Veterinary Practice,’ Veterinary Record vol. 170 p.19.

Engster, D 2005, ‘Rethinking Care Theory: The Practice of Caring and the Obligation to Care’ Hypatia vol. 20 no. 3.

Goldberg, J and Zipursky, B 1998, ‘Moral of MacPherson’ Pennsylvania Law Review vol. 146 p. 1733.

Goldberg, J and Zipursky, B 2001, ‘The Restatement (Third) and the Place of Duty in Negligence Law’ Vanderbilt Law Review vol. 54 no. 3 p. 657.

McBride, N.J, 2004, ‘Duties of Care ⎯ Do they Really Exist?‘Oxford Journal of Legal Studies vol. 24 no. 3 p. 417.

Oliphant, K 2013 ‘Against Certainty in Tort Law’, in S Pitel et al. (eds), Tort Law: Challenging Orthodoxy Hart Publishing, Oxford pp. 1-18.

Rollin, B.E 2006, An Introduction to Veterinary Medical Ethics Blackwell, Ames.

West, R 1997, Caring for Justice, New York University Press, New York.

Peripheral Thinking and Abortion Care

By Ruth Fletcher

‘Peripheral thinking’ seems to me to be one useful framework for identifying what states do when they respond to residents’ practices of travelling away for care.   States take a variety of actions when their residents cross borders for care; actions which produce, stigmatise, ease, regulate and represent that flow all at the same time pulling it in different directions. If we want to understand better the effects of those actions and perhaps even how to steer them, we need a way to differentiate between them while acknowledging the transnational space they occupy. Here I want to distinguish between three different kinds of peripheral thinking that inform such state actions – inverted, tangential and circular – in order to consider further how best to respond to the spaces for engagement that they open up. My reflections work out from the example of state actions and transnational care flow with which I’m most familiar, that of Irish state practices as they contribute to women’s outward flow for abortion care (Fletcher, 2013).

Inverted peripheral thinking

When states adopt law and policy that support travel for care whose provision is restricted at home, one kind of peripheral thinking they use to justify their actions takes an inverted form. They claim that the failure to provide the particular care at issue is actually evidence of a central role in international care provision and not a peripheral role.   In arguing that Ireland is an international leader in care for the ‘unborn’ and in maternity care more generally, the state has often represented its failure to care for pregnant women as a success. This is a familiar if crude form of thinking, which Barrett (1992), drawing on Marx, called the ‘camera obscura’ version of ideology.   The periphery represents itself as central to the delivery of care (to the ‘unborn’), with the effect of negating a peripheral role and obscuring failures in care delivery (to pregnant women).

Tangential peripheral thinking

But inverted peripheral thinking is not the only rationality that states use when they play a role in generating outward flows for abortion care. They may turn authoritarian in restricting or punishing travel for abortion care (Fletcher, 1998), but that is relatively rare. It is more usual for states that are peripheral to the provision of abortion care to end up accommodating use of that care to some extent because their residents compel them to. In the 1990s the Irish state famously compromised on its anti-abortion position by constitutionally recognizing freedoms to travel to and receive information about abortion care abroad. Since then the Crisis Pregnancy Programme has developed a network of predominantly pro-choice counselling agencies throughout the Republic of Ireland which provide free pregnancy counselling and post abortion check ups.

In a two-tier health system where many people pay fees to attend a general practitioner, the provision of free pre- and post- abortion care, with all its limits, is significant. In using regulatory techniques such as public funding, training and communication to normalize travel for abortion care, the Irish state demonstrates tangential peripheral thinking. Here the peripheral thinker does not want to become core as care provider, but instead approaches the core provision of abortion care sideways.   Peripheral thinking develops tangential connections with the core provider of abortion care by taking on activities which are a key part of abortion care, but are themselves on the periphery of that care, namely the provision of information, counseling and check ups. Tangential peripheral thinking then is conscious of being at a distance from core care provision, and does not want to become core. Rather tangential thinking connects periphery and core care providers by taking peripheral care activities, which are needed for the provision of core care, as the object of its attention and facilitation.

So far, civil society critics of Irish abortion policy have focused on the discriminatory and hypocritical aspects of this kind of tangential thinking (e.g. ARC, CRR, DfC, ICCL, IFPA, WHRA). Travel policy has discriminatory effects and is not an adequate means of the state meeting its public responsibilities, because the less mobile will be less well served. Abortion travel policy is hypocritical because it cedes its domestic anti-abortion moral stance and supports access to abortion on grounds that would not be legal within the territory. But these critiques can retain their truth while we also recognize that travel policy has some positive effects from a feminist perspective.

We can welcome the way that this public recognition of women’s use of abortion care has likely contributed in some way to increased tolerance of abortion.   Opinion polls now regularly reveal greater levels of support for abortion than the state is willing to entertain in domestic provision. Although, as in many other countries (e.g. Sanger, 2014), Irish women are far from feeling free to speak openly at will about their abortion experiences, there have been several initiatives which tackle the association of abortion with stigma in the public sphere (Enright, 2014). The state’s tangential peripheral thinking has opened up (and indeed arguably resulted from) spaces for feminists and pro-choice advocates to engage and push the state further towards recognizing and serving women’s needs.

Circular peripheral thinking

A third kind of peripheral thinking that we see in Irish abortion travel policy takes a circular form and argues that there is nothing the state can do to change its own practices. Here the state argues that its own rules, or the views of the people, prevent it from acting to cure some harm or wrong that it cedes is in contravention of international human rights norms. There was a particularly spectacular example of this kind of peripheral thinking evident in the state’s response to the UNHRC during Ireland’s review under the ICCPR in July 2014. The Minister for Justice and her staff faced hard-hitting criticism by the HRC members for the failure to protect women’s civil and political rights in relation to abortion but also more generally (e.g. Cahill, 2014).

Representatives of the Department of Justice responded by relying on Article 25 and the right to vote to say that past abortion referendums meant it could not do any more legally to bring Irish abortion law into conformity with the Covenant. As Enright tweeted during the hearings (I’m paraphrasing), “to recap, the Department of Justice has just argued that Parliament can vote to inflict inhuman and degrading treatment on women”. Much was made at the time of this failure of the state to recognize that this ‘tyranny of the majority’ type argument contradicted the whole premises of the state’s claimed commitment to human rights, and indeed HRC member Mr Shany asked the state party to withdraw the relevant statement.

But here the point I want to make is that this way of thinking is a circular denial of sovereign power to make and interpret law. This state is so embedded in the periphery of abortion care that it can’t even imagine the possibility of proposing a referendum which would liberalise abortion provision, rather than restrict it (see further Flinterman’s comments). A state which refuses to act in legislating for abortion care (except when forced to by the ECtHR in ABC) on the grounds that its own legal rules so prevent, or that the people would not tolerate such action, has a strange understanding of its own legal power and moral responsibility.

In representing itself as a passive effect of its own legal authority, the state adopts a circular form of peripheral thinking which renders it eternally peripheral to its own power in a spectacular act of legal misrecognition. Of course, the state could introduce a Bill to remove Article 40 3 3. It could decriminalize abortion. It could promote an interpretation of Article 40 3 3 that recognizes substantive differences between pregnant women and fetuses, and permits domestic abortion in a way that would likely reduce the outward flow. But it chooses not to.

Conclusion

States, particularly the Irish state, have actually been quite creative in responding to their residents’ practices of travelling abroad for care that is restricted at home. They have used a range of regulatory techniques that have effects on cross border care flows. In the case of law and policy on abortion-related flows, these different techniques present challenges and resources to those of us who wish to make abortion access easier. First of all, we need to throw our net more widely when we try to capture legal tools that have an effect on women’s abortion practices. The legal instruments which restrict women’s access on the territory of the nation-state are significant. Inverted peripheral thinking, which denies harms to women while celebrating care of the ‘unborn’ as a marker of international leadership, arguably takes care and international norms seriously, but requires redirection.

But as women’s cross-border abortion practices illustrate, norms of domestic restriction are not the only legal instruments that are significant. Regulatory measures that promote non-judgmental information and counselling and provide public funding do acknowledge extra-territorial abortion use and attempt to reduce harms to travelling women. Working with such tangential peripheral thinking may provide further opportunities to destigmatise abortion and promote a harm reduction framework. And finally, the kind of circular peripheral thinking, which sees the state deny its own power to have an impact on care flows, provides welcome opportunities for reminding the state that women are not the only ones who bear public responsibilities for care provision.

PS I wrote this before the news of the recent abortion refusal case broke.  My initial thoughts on that failure in abortion care are here: http://humanrights.ie/constitution-of-ireland/contesting-cruel-treatment-ruth-fletcher/

If you would like more information about civil society’s campaigning responses to this case and more generally please see: http://www.abortionrightscampaign.ie and https://www.facebook.com/pages/Speaking-of-Imelda/571659212932533

Comments welcome.

Crisis Compounded? Legal Aid, Feminist Advocacy, and the Budget Cuts in British Columbia, Canada

By Agnieszka Doll

Since 2002, the successive governments of the Canadian province of British Columbia (BC) have enacted large-scale budget cuts to state-funded legal aid. The Canadian Centre for Policy Alternatives researchers reported that in 2002 provincial funding for legal aid has been cut by 40 percent (Brewin & Stephens, 2004; Govender & Milne, April 9, 2013) The most severe reductions were implemented in areas of family law, poverty law, and immigration legal aid. In fact, by the 2010 the legal aid representation in poverty and immigration cases was completely eliminated, while in family law, such representation has been limited to high risk cases (Brewin & Govender, 2010; Brewin & Stephens, 2004). In addition to difficulties in receiving legal representation, access to legal information has been also limited by changing eligibility threshold, substituting direct contact with lawyers with online and telephone service, and reducing the number of legal clinics. While legal aid in BC was considered insufficient even before the reductions, the cuts further deepened the crisis by limiting access to justice for the most marginalized populations (Morrow, Hankivsky, & Varcoe, 2004).

Feminist scholars (Morrow et al., 2004) have specifically argued that the cuts have a clear gender dimension. Firstly, prevalence of poverty among women, including those who experience intimate violence, renders women particularly disadvantaged by legal aid cuts as they often rely on state-resources for their access to justice (Sarophim, 2010). Secondly, the implemented cuts predominately targeted services related to family, civil or poverty law, which women tend to use more often that, for instance, services related to criminal law that received no similar cuts and that tend to be more frequently utilized by men. Third, concurrent implementation of changes limiting state funding for women’s organizations and subjecting funding to competitive distribution model, shattered existing infrastructure of research and advocacy-based organizations that are often unable to compete with for-profit organizations for service provision (Knight & Rodgers, 2012).

In the midst of those changes, I conducted (between 2008-2009) a qualitative study in one B.C women’s organization through which I explored how the organization’s staff experience delivering law-related services to women or helping these women access justice in the context of the budget cuts. I was also interested in learning about the extent to which existing legal services meet specific needs of immigrant women who experience intimate violence.

My interviews with the organization’s frontline staff and its administrators, as well as a focus group and hours of observations revealed three major findings regarding the consequences of government cuts on service offered by the organization:

1)      The organization went through severe employment shifts. For example, at the time of my research, the Victim Assistance Program – designed to assist women who experience abuse in navigating their criminal cases through the criminal justice system – lost all of its previous employees and was run by a new staff. Such shifts in the staff composition complicate the organization’s court presence; the previously established relations with the court personnel often need to be rebuilt, which takes significant amount of time and effort. Thus, the cuts contributed to shattering the organization’s credibility as legal advocates by affecting its ability to remain visible to justice and police administration.

2)      The organization became dependent on volunteer work. For example, the women’s center, which is often the first contact point for women seeking legal services, was forced to substitute the loss of three fourth of its professional staff with work of volunteers. This restructuring has consequences on the quality of information received by women who come for legal guidance. Since volunteers provide their help occasionally, their skills are mostly used to support the basic functioning of the center not to provide information about legal aid service to women in need. Often, they do not have the related professional training.

3)      Given changes in priority areas funded by the government, the organization adjusted their own services accordingly. Previous focus on feminist political awareness raising about the nature of gender inequalities or feminist advocacy gave way to emphasis on short-term relief services provided to the victims of gender violence. As organizations became forced to compete with each other for resources, they started to internalize the idea of self-sufficiency as their key for survival. Thus, instead of sharing resources such as translation services, etc. with other organizations, applying for own funding came to be regarded as a strategy of ensuing inflow of additional money to the organization.

One important implication of my study I would like to highlight is the impact of budget cuts on feminist organizations’ potential to pursue advocacy for women in the courts, in the police, and in other law enforcing institutions. While the budget cuts to legal services evidently degenerated the position of women experiencing violence who need to represent themselves in courts and often surround their rights, truly successful legal representation amounts to more then just having a lawyer. It would not be novel to say that the gender stereotypes still prevail in the criminal justice system; the domestic violence cases are considered of a lower importance to other criminal cases, and the knowledge of intimate violence by court, police authorities, but also by lawyers is often not sufficient. Thus, survivors-centered advocacy shall be considered as complementary to prosecution or to other legal procedures resulting from or linked to gender violence so the needs of women are addressed by judicial decisions (Nichols, 2013). I would like to also suggest that individual-level advocacy pursued on the ground by feminist advocates is instrumental for fair and equal access to justice for women, similar, as it is to the needs-based access to legal aid. The structural –level feminist advocacy needs to continue to expose the link between the gendered socio-structural inequalities and gender violence. Those important dimensions of women’s and anti-violence movements have been seriously jeopardized by the discussed budget cuts. The quest for funding had the effect of pushing women’s organizations to depoliticize and subvert feminist ideas about the relationship between gender, violence, and structural inequalities and, instead, adopt “a Band-Aid” solution to gender violence and channel their advocacy efforts. This way, by undermining the potential for feminist advocacy through budgets cuts, the B.C. governments made effective steps towards reinforcing gender order through legal means and within legal system.

Bibliography:

Brewin, A., & Govender, K. (2010). Rights-Based Legal Aid: Rebuilding BC’s Broken System. Retrieved from Canadian Centre for Policy Alternatives website: http://www.policyalternatives.ca/sites/default/files/uploads/publications/BC Office/2010/11/CCPA_Legal_Aid_web.pdf

Brewin, A., & Stephens, L. (2004). Legal Aid Denied: Women and the Cuts to Legal Services in B.C. BC Office: Canadian Centre for Policy Alternatives and West Coast LEAF.

Govender, K., & Milne, K. (April 9, 2013). BC’s Publicly Funded Legal Aid is in Crisis. Retrieved from Canadian Centre for Policy Alternatives website: http://www.policyalternatives.ca/publications/commentary/bc%E2%80%99s-publicly-funded-legal-aid-crisis

Knight, M., & Rodgers, K. (2012). “The Government Is Operationalizing Neo-liberalism”: Women’s Organizations, Status of Women Canada, and the Struggle for Progressive Social Change in Canada. NORA – Nordic Journal of Feminist and Gender Research, 20(4), 266-282. doi: 10.1080/08038740.2012.747786

Morrow, M., Hankivsky, O., & Varcoe, C. (2004). Women and Violence: The Effects of Dismantling the Welfare State. Critical Social Policy, 24(3), 358-384. doi: 10.1177/0261018304044364

Nichols, A. J. (2013). Meaning-Making and Domestic Violence Victim Advocacy: An Examination of Feminist Identities, Ideologies, and Practices. Feminist Criminology, 8(3), 177-201. doi: 10.1177/1557085113482727

Sarophim, J. (2010). Access Barred: The Effects of the Cuts and Restructuring of Legal Aid in B.C. on Women Attempting to Navigate the Provincial Family Court System. Canadian Journal of Family Law, 26(2), 451-472.

‘Who is Helping Who?’ – Co-Production and Professional Boundaries within Social Care services.

By Nick Andrews

I have been working in education and social care for thirty years, and have seen various new initiatives and buzz words come and go, whilst the fundamental principles of humanity remain the same. ‘Co-production’ in its truest senses is grounded in these principles. However, as with the concepts of ‘personalisation’ and ‘reablement’, there is a real danger that the term  ‘co-production’ is misused for hegemonic purposes to cover up what is essentially a cost cutting exercise. Under this scenario, individuals and their communities are expected to take on more responsibility for their own well-being whilst the machine of impersonal and ‘professionalised’ public services carries on as it always has done, albeit it with a few less staff employed. In my opinion, this would be a travesty and missed opportunity to restore warm humanity as the driving force for public services, not compliance with increasingly centralised and de-personalised processes and systems.

One of my favourite quotes by the theologian Martin Buber is ‘all real living is meeting’. Please note that Buber’s understanding of the term ‘meeting’ is much richer than the idea of putting a group of people together in a room or placing nurses and social workers in the same office, which is commonly assumed to result in integrated practice. I am sure many people will share my experience of being in meetings where no one actually met, where each person had their own agenda and the purpose of the meeting was to get this across – to win the argument.  For Buber, ‘meeting’ is about genuinely connecting with other people and being changed in some way by the process. In order to explain this process, he talks about two ways of relating to people and the world, which he calls ‘I-It’ and ‘I-Thou’.

In ‘I-it’ relationships, the person is detached and unaffected. In ‘I-Thou’ relationships, the person is attached and vulnerable. Tom Kitwood, in his seminal book ‘Dementia Reconsidered – The Person Comes First’ talks about his experience of seeing how people living with dementia were dehumanised through receiving emotionally detached task based care:

‘A man or woman could be given the most accurate diagnosis, subjected to the most thorough assessment, provided with a highly detailed care plan and given a place in the most pleasant of surroundings – without any meeting of the I-Thou kind ever having taken place’ (Kitwood, 1997)

By contrast, I believe that genuine co-production facilitates and nurtures the development of ‘I-Thou’ relationships between all parties, which in so doing begins to challenge the prevailing understanding of professionalism and professional boundaries.  In relation to this, I am currently co-ordinating a NISCHR and Joseph Rowntree Foundation (JRF) funded project in Wales, which is focused on the use of evidence from their ‘A Better Life – for older people with high support needs’ programme, along with other forms of evidence in social care service and workforce development.

The ‘A Better Life’ programme has identified that relationships are key and ‘Often it is the simple things that bring the most pleasure (and the lack of them can bring a sense of sadness and loss) and services do not always seem to be very good at delivering ‘the ordinary’’. (Blood, 2013 p13)

The research challenges also call for a different way of working, which is often alien to the world of emotionally detached and compliance focussed task based care, which is summed up nicely in the following quote by Edgar Cahn:

‘The world of helping others in need is now built around one-way transactions…. and with the best of intentions, one-way transactions often send two messages unintentionally. They say: “We have something you need – but you have nothing we need or want or value.”’  (Cahn, 2004).

In a series of recent focus groups and learning events involving older people, carers and frontline staff, I have been struck by how many people feel that current regulation and guidance is risk averse restrictive and at worst destructive of human relationships. For example, workforce regulation states ‘the inappropriate use of touch is not permissible’, rather than ‘the appropriate use of touch is fabulous and to be encouraged’. This is a particular issue for people living with dementia, who often have to express themselves and connect with others through feelings and emotions. Frontline staff talk have talked about feeling guilty when they do little kind things that are not written in the Care Plan or receiving small gifts of appreciation, older people have been ‘told off’ (in the name of health and safety) for pouring tea for others in day services, and carers have been made to feel that they no longer have a role when the person they love goes into a care home.

At the heart of co-production, is an understanding that everyone has something to contribute and that exchanging these contributions is enriching for everyone concerned.  I am reminded of the work of Jean Vanier, who established the L’Arche Communities in learning disability services. Vanier did not see his role as caring for people with learning difficulties, but rather sharing his life with them and being open to receive and learn from them as much as to offer them support.

I am reminded of one of my earliest experience of working in social care services. It was 1984 and I had started my first job as a residential support worker in a children’s home. I thought I was the ‘sorted one’ who was employed to help others. I worked hard to form good working relationships with staff and children in the home, but one boy, who had experienced a lot of hurt in his life, kept his emotional distance. As anyone who knows me well can tell you, I am not gifted in DIY or anything that involves fixing something mechanical. One day, I was trying to repair my bicycle (I did not drive at the time) and was getting nowhere fast. The boy walked past me and said ‘I’ve got a book about repairing bikes, do you want to borrow it?’. I am pleased to say that I took up his offer and our friendship took off from that day. He is now a happily married 43 years old who lives on the other side of the country, but we still keep in contact via Facebook and phone and offer each other support and encouragement whenever we can.

Jean Vanier once said, ‘I am struck by how sharing our weakness and difficulties is more nourishing to others than sharing our qualities and successes’. This is an important message for social care practitioners and agencies. We need to open our ears, our eyes and our hearts to the people we work with, which might involve sharing our vulnerabilities and concerns and allowing ourselves to be changed by genuinely ‘meeting’ with them in truly co-productive relationships.

 

References

Blood, I. A Better Life – Valuing Our Later Years, York, Joseph Rowntree Foundation, available at: http://www.jrf.org.uk/publications/better-life-valuing-our-later-years

Cahn, E. (2004), No more throw away people – the co-production imperative, Washington, Essential Books