Residence Rights for Carers of Union Citizen Children before the Court of Justice of the European Union

Residence Rights for Carers of Union Citizen Children before the Court of Justice of the European Union: Some Reflections on the Pending Case of Chavez-Vilchez and Others

by Dr. Fulvia Staiano
Postdoctoral Researcher, School of Law, UCC Cork
fulvia.staiano@ucc.ie

In the currently pending case of Chavez-Vilchez and Others [1] , the Court of Justice of the European Union (CJEU) was presented with two questions on the limits and scope of the principles established in its landmark Zambrano [2] judgment. These question, in particular, aimed to ascertain the scope of the principle established in Zambrano (and subsequently clarified in Dereci [3] ), whereby a third-country national parent of a child who is a citizen of a Member State enjoys a right of residence on its territory only when it can be said that the child would be forced to leave the Union in case of expulsion of the parent.

The Chavez-Vilchez case concerns a group of third-country national mothers who are the primary carers of their Dutch citizen children. The involved women opposed the Dutch authorities’ refusal to grant them with residence rights, motivated by the view that in case of their expulsion, the Dutch fathers of their children could still provide them with the necessary care. They submitted that they have sole parental authority and custody over their children, while the respective fathers are unwilling or unable to take care of them. In this light, the referring court has asked the CJEU to assess two main issues, both related to the interpretation of Art. 20 TFEU. First, it seeks to determine whether a Member State must grant the right to reside on its territory to a third-country national parent who carries out the primary care of his or her minor child, when the latter is a citizen of that Member State. Second, it asks whether for this purpose it is relevant that the legal, financial and/or emotional burdens do not weigh entirely on the primary carer, and whether it must be proved that the other parent is unable to assume responsibility for the care of the child.

These questions offer the CJEU with an opportunity to provide important insights into its understanding of care, particularly in relation to the quality and intensity of the carers’ involvement in their children’s upbringing for the purpose of qualifying them as indispensable. As is known, the CJEU has consistently granted residence rights to third-country national parents of Union citizen children on the grounds of the care provided by the former to the latter. In a first group of cases, this recognition was linked to the possibility for Union citizen family members to exercise their freedom of movement within the territory of the Union . Starting from the Zambrano judgment, residence rights for carers were also detached from the exercise of free movement and linked to the enjoyment of the substance of the rights attached to EU citizenship.

With the sole exception of its Carpenter judgment, in this case law the CJEU has so far consistently used the expression “primary carer” in respect to third-country national women involved. It was precisely this role of primary carer that prompted the conclusion that such care was essential for their children’s enjoyment of the rights either connected to their own Union citizenship or stemming from their father’s Union citizenship. The CJEU has not so far clarified the meaning of the notion of primary carer . However, this expression has arguably been used to refer to the essential and indispensable character of the care provided by a parent, and to the consequent dependence of Union citizen children from said parent.

On the other hand, in more recent judgments concerning third-country national fathers, i.e. in Zambrano and Dereci, the expression “primary carer” cannot be found. In the case of Zambrano, the dependence of the involved children from their father’s right to reside in Belgium was not assessed in terms of care at all, but rather inferred from the fact that both Mr. and Mrs. Zambrano – being irregularly resident third-country nationals – would be forced to leave the Union territory in case of denial of residence rights. In Dereci, the CJEU also overlooked the degree of involvement of Mr. Dereci in his children’s care, since his wife’s Austrian citizenship – and related right to reside in Austria – meant that their children would not be forced to leave the Union territory in case of his expulsion.

In this light, parental care does not appear to play a crucial role in the test carried out by the CJEU concerning the possibility for Union citizen children to fully enjoy the substance of the rights recognised by virtue of their status. The citizenship of both of their parents, in particular, can play an overriding role in this assessment.

Precisely for this reason, the outcome of the Chavez-Vilchez case will deserve specific attention. The presence of Union citizen fathers in the present case may indeed not be considered as a decisive factor to determine that the involved children would still be able to enjoy the substance of rights related to their Union citizenship in case of expulsion of their mothers. The lack of involvement of such fathers in their children’s care and upbringing, and their unwillingness or inability to ensure such an involvement in the future, will necessarily play a role in the CJEU’s assessment. This case, therefore, has the potential to foster key judicial clarifications on the meaning of primary care, on the degree and type of involvement necessary to consider parental care as indispensable and irreplaceable, as well as on the type and degree of fatherly involvement in childcare that may be reasonably expected and required in this context. A finding of the CJEU in the sense of recognising third-country national parents with residence rights on the grounds of the primary character of the care provided to their children would constitute a crucial development, bringing reproductive work to the fore and opening new perspectives for those devoted to it.

[1] C-133/15, Chavez-Vilchez and Others v. Raad van bestuur van de Sociale verzekeringsbank (Svb) and Others, lodged on 18 march 2015 [pending]. For an account of the factual grounds of the case, see Anouk Biesteker, Lukasz Dziedzic, Lorena Navia-Rodriguez, Gareth T. Davies and Janneke De Lange, Expert Opinion on Issues arising from the Pending Case of Chavez-Vilchez and Others (C-133/15), 30 June 2015, summary in English available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2641773 [last accessed on 28 October 2015].

[2] C-34/09, Gerardo Ruiz Zambrano v. Office National de l’Emploi, judgment of 8 March 2011.

[3] C-256/11, Murat Dereci and Others v. Bundesministerium für Inneres, judgment of15 November 2011.

Caring about P in the Court of Protection: the Re X scenario

by Jaime Lindsey, PhD Candidate and Teaching Associate at the University of Birmingham ( j.t.lindsey@bham.ac.uk)

In the recent Court of Appeal case, Re X [1], the judges’ obiter comments were certainly timely. The case concerned Deprivation of Liberty Safeguards (DOLS) cases under the Mental Capacity Act 2005 (MCA). The case itself turned on the question of whether P (the subject of the court proceedings) had to be a party to the proceedings in which they would potentially be deprived of their liberty. Whilst the Court of Appeal held that they did not have jurisdiction to hear the appeal, they made their feelings clear that P should always be a party to DOLS proceedings.[2]

Under the MCA, individuals can, in certain circumstances, be deprived of their liberty in a care home or hospital for the purpose of being given care or treatment.[3] Further, a person who may be deprived of their liberty outside of a hospital or care home, but still with sufficient degree of State involvement, would also require Court authorisation for the deprivation of liberty.[4] Many of us would expect that depriving a person of something so fundamental as their liberty should, at the very least, require them to have some input into the discussion. In fact, the ECtHR jurisprudence requires that a person who is to be deprived of their liberty should have access to a court and the opportunity to be heard.[5] This is not only important on an academic level; if a person who does not wish to be deprived of their liberty forcefully resists it, then the measures which need to be taken against them are surely an important factor for any court to consider before making an authorisation.

Yet this should not only be the case for removing somebody’s liberty. In my view, a more compassionate and inclusive approach should apply more broadly to the Court of Protection’s entire jurisdiction. In fact, new Court of Protection rules require the court to, at the very least, consider whether P should be required to participate in the proceedings and this is certainly a step in the right direction.

Involving P in the capacity question

As of 1st July 2015, the new Court of Protection (Amendment) Rules 2015 came into force. They require, amongst other things, that the Court considers whether it should make one of a number of directions relating to P’s participation in the proceedings (new Rule 3A Court of Protection Rules 2007). The possible directions it can make include: (1) joining P as a party (2) appointing a legal (or otherwise) representative for P (3) requiring P to address the judge (4) any alternative direction meeting the overriding objective. Whilst these rules certainly could have gone further, they show the Court’s increasing awareness of the greater need for P’s involvement.

Rule 3A is certainly an important step forward. It should ensure that judges and the parties are alive to the question of P’s involvement. Actually, involving P should be seen as a positive way to assist the Court in deciding whether he or she has capacity; a large part of the Court’s jurisdiction in health and welfare cases is about determining whether or not a person has the capacity to make a decision in the first place and this should not be forgotten. Clearly there will be cases where the capacity question is clear from the outset, for example consider the brain damaged adult on life support, but many more cases will be borderline and sometimes will involve adults who have no mental or learning disability at all.[6] Either way, to the extent that it is possible to do so and for capacity determinations at least, P should always be involved with proceedings.

A more inclusive approach?

The new rules should certainly go some way in achieving a more inclusive approach to decision making in the Court of Protection and are to be welcomed. However, the extent to which, and in what way, the options open to the Court will be used will need to be examined following implementation. A major factor in the increased involvement of P in proceedings will be the lawyers, social workers and carers who are involved in the case; if they see the benefit of involving P and argue in favour of this in court then is a judge really likely to refuse? Particularly in light of the obiter comments of the Court of Appeal in Re X, albeit that was in a slightly different context. In fact, the onus is not only on the judge in the case to consider this but it is also on the parties who can make an application to request such a direction. Those who know and work with P, and the lawyers on all sides, should be encouraged and feel empowered by recent developments to request P’s involvement.

The power of the Court of Protection in affecting the lives of individuals who fall under the MCA regime, both for the positive and negative, is enormous. In some ways, whether or not the outcome of the cases is any different as a result of the involvement of P is not the measure of success; what is vital is that people feel that their voice is heard, particularly in relation to decisions affecting their own lives. This empowers people to “buy in” to the ultimate decision that might be made on their behalf. That said, involving P in the decision making process will hopefully lead to better and more context sensitive decisions being made and the new rule 3A is a first step in achieving this.

[1] Re X [2015] EWCA Civ 599

[2]Ibid per Black LJ at para 108

[3] Pt1 s.1(2) MCA

[4]Under s.16(2)(a) MCA

[5]Winterwerp v The Netherlands [1979] 2 EHRR 387

[6] See for example IM v LM and AB [2014] EWCA Civ 37

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.

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.

‘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

‘Counting the Costs? Resources, Austerity and Older LGBT People’

The ‘Minding the Knowledge Gap’ ESRC funded seminar series held its fourth seminar at the University of Surrey last week. This seminar, called ‘Counting the Costs? Resources, Austerity and Older LGBT People’ addressed the material, financial and social resource implications of lesbian, gay, bisexual and trans (LGBT) ageing, particularly in times of austerity. It was well-attended by participants from a range of backgrounds: LGBT individuals (in all their diversity, including some in older age); advocates and activists; academics; social policy makers; and the police. There were two speakers. Dr Noah Uhrig, from the Institute for Social & Economic Research, University of Essex, gave a fascinating talk on ‘Poverty and Material Well-being of LGBT elders’, somehow managing to make some very complicated statistic not only accessible but also enjoyable. Audience members gazed in avid fascinating and still wanted more at the end. The second speaker, Dr Martin Mitchell, NatCen Social Research presented on ‘Not just “a nice thing to do”: Marginalisation and hardship for LGBT older people in the context of austerity cuts.’

Noah spoke of recent research project on poverty and sexual orientation (constrained by the usual problems with representative sampling of a ‘hidden population’) which suggested significant material differences in later life for LGB individuals compared with heterosexual individuals, and between one another. A key feature was the suggestion that older lesbians were materially advantaged compared with both older heterosexual individuals and older gay men. Noah’s data – which he bravely presented, anticipating the response it would meet – were, not surprisingly, hotly contested by many of the lesbian members of the audience. They found the idea of older lesbian material advantage counter-intuitive. Discussions raised issues of: women’s relative lower earnings to men; women’s greater representation in (lower paid) public services work, especially care work; women (including lesbians!) taking time out of work to have children, and to perform other informal unpaid care work (including for parents and grandchildren); women being much more likely to be in part-time paid work (rather than full-time work) while also performing unpaid informal care work (1). Noah acknowledged the tensions provoked by the data, and plans on conducting further analyses. We look forward to hearing more!

Martin then spoke of the double-edged sword of austerity cuts. Older LGBT individuals are more likely to need support from those public and voluntary sector services (health and social care, informal and formal social support) which are currently subjected to drastic cuts in funding (2). Those cuts in services impose increased pressures on an already pressured cluster of minoritised individuals, meaning they have a greater need for services, at the very time when there are fewer services available. Lack of material and social resources have profound implications for the well-being of older LGBT individuals (3) (4).

Afternoon discussions returned to the issue of gender (again unsurprisingly) and to the need to continuously unpack the ‘LGBT’ acronym (5), to appreciate how older lesbians, gay men, bisexual women and men, and trans individuals are particularly affected by the material and social resource implications of later life. The plight of the Opening Doors London project, supporting 1,000 older LGBT individuals in the London area, and which has lost all of its funding, highlighted the lived realities of the implications of austerity cuts. Towards the end of the day two distinct responses to resourcing projects for older LGBT in later life: the neoliberal model of private and national state engagement; a more localist, communitarian approach involving local LGBT groups and local government. It was mentioned that in Australia and some parts of the USA, older LGBT have been designated a ‘special needs group’ (with all the complications of such a categorization) and as such are eligible for state funding for local projects.

Much food for thought, and much work to be done, but all-in-all, it was a stimulating and thought-provoking day, made so by the contributions of all who attended.

(1)    Arber, Sara (2006) ‘Gender and Later Life: Change, Choice and Constraints’. In J. Vincent, C. Phillipson and M. Downs (eds) The Futures of Old Age, pp. 54-61,London: Sage.

(2)     King, Andrew (2013) ‘Prepare for Impact? Reflecting on Knowledge Exchange Work to Improve Services for Older LGBT People in Times of Austerity.’ Social Policy and Society / FirstView Article / November 2013, pp 1 – 13 DOI: 10.1017/S1474746413000523, Published online: 19 November 2013

(3)    Fredriksen-Goldsen, et al (2013a) ‘Physical and Mental Health of Transgender Older Adults: An At-Risk and Underserved Population.’ The Gerontologist doi: 10.1093/geront/gnt021First published online: March 27, 2013

(4)    Fredriksen-Goldsen, Karen I., et al. (2013b). ‘The physical and mental health of lesbian, gay male, and bisexual (LGB) older adults: the role of key health indicators and risk and protective factors.’  The Gerontologist, 53(4):664-675.

(5)    Ward, Richard, Rivers, Ian. and Sutherland, Mike (eds) (2012). Lesbian, Gay, Bisexual and Transgender Ageing: Biographical Approaches for Inclusive Care and Support.  London: Jessica Kingsley

 

 

 

‘Dangerous Care’ by Ann Stewart

Last week, three care workers from Hillcroft nursing home were jailed and a fourth given a community sentence for tormenting and abusing elderly residents with dementia. Their actions were described by the trial judge as “gratuitous sport at the expense of vulnerable victims”.  This high profile case adds to a depressing list of abuse of frail elderly and vulnerable people amounting in many instances to criminal behaviour on the part of care workers.

This blog is a personal reflection on these events although I do have an academic interest in body work and the regulation of care.  My first reaction when I read or see the coverage is to feel sick.  I am taken back instantly to the emotions I experienced in relation to my own parents.  They lived until their late 80s together in their council bungalow in a village until my mum’s physical health deteriorated significantly.  Dad was not able to look after her adequately and I took over responsibility for them.  Eventually they came to live with me and for two years or so I became immersed in the world of ‘care’ – high intensity emotional contexts, exhaustion and persistent low level frustration caused by every day events coupled with constant anxiety about their wellbeing.  I hated to think of their vulnerabilities being exposed.  I wanted everyone around them – care workers, nurses, my friends, neighbours and adult children to see them for what they were – simple ordinary people – nothing special – at the end of their lives.  I wanted people to like them – to see through all the stuff that comes with frailty in old age – and to treat them well and with respect.  I can’t bear to think about what has happened to people like my mum and dad, although neither had the added vulnerability of dementia in the situations described in these cases. I am of course not alone in this – the relatives and friends of those who experienced the abuse say the same: they are angry and feel guilty.  I understand the guilt while recognising that it is inappropriate.

My second reaction focuses on the pictures of the workers, described as bullies, monsters, callous and hard hearted and a disgrace.  I find it difficult to join in the ‘how could they?’ responses.  I was constantly anxious about the demands that my mother in particular presented to those who cared for her.  I worried all the time that they were unreasonable – I often found them unreasonable when I was doing the caring – while at the same resisting this way of thinking about her – why was I expecting her to be reasonable?  What did that mean – complying with my idea of what she wanted or needed?  I would mentally grit my teeth, draw on a joint history (not uncomplicated) and my love for her and find a way through although I would feel furious at times.  I didn’t always stop myself saying and doing callous things or neglecting her.  But how would those who only knew her in this last stage of her life, and through a work relationship, cope?  What did I expect of them?  What was reasonable?

I hoped to manage relationships between care workers and my parents and between the care workers themselves (we always had a minimum of 2 at any one time because of the complex needs of my mother) by throwing as many resources as possible at the situation – decent wages and generous conditions – plenty of substantial and paid breaks away from her during working hours, long holidays, constant attention to individual worker’s needs and pressures,  flexible arrangements between the workers themselves and so on.  I am no saint. I wanted the arrangements to work.  I liked all the people involved.  I could be ‘generous’ because my parents received substantial financial support through direct payments at that time because my dad had been a farmer worker and they had no assets.  I could add to this from my professional salary.  I lived in a very large house with a big garden providing ‘space’ for workers.  It was still far from easy.  Tensions between workers would emerge which had to be sorted out.  But by having a mix of part time postgraduate students, full time directly employed workers and some agency workers coming in at peak times we managed somehow.

I look at the pictures of the ‘homes’ that always seem to accompany the reports of these institutional abuse cases and think about the financial and managerial regimes that underpin them.  The reports provide glimpses of the position of the care workers – often from marginalised groups in society, under pressure, vulnerable, untrained, unsupported and under-resourced – and I can see how the abuse happens quite easily and I find it hard to join in the general condemnation while sharing the anger at what has happened.

It seems to me that we as a society abuse these workers and when they abuse others we send them to prison. We create a ‘moral panic’ about institutional care and put these body workers at its heart.  Labour law seems totally unable to provide an adequate framework for protecting care workers and for managing these really difficult relationships.   The structural problems associated with the commodification of caring particularly in a context of ‘austerity’ are being mis framed as the individual responsibility of marginalised workers within the law. These workers’ (often physically and emotionally exhausted) culturally identified bodies are made invisible for these purposes while increasingly made subject to surveillance by managers and regulators through other forms of regulation deemed necessary to prevent the abuse which results from the means through which such care is provided.  The state punishes them for our collective lack of responsibility.

Ann Stewart, School of Law, University of Warwick, Coventry CV4 7AL, UK 

Publication of the Irish Assisted Decision-Making (Capacity) Bill – Implications for Carers

At long last, on Wednesday 17 July, after many years and countless delays, the Bill to put in place a modern legal framework for people with impaired capacity in Ireland was published.  When enacted, the Assisted Decision-Making (Capacity) Bill will replace the Lunacy Regulation (Ireland) Act 1871 (so the need for modern legislation can hardly be overstated).  It is also intended that the new legislation will pave the way for Ireland to ratify the United Nations Convention on the Rights of Persons with Disabilities (CRPD) which it has signed but could not ratify because the Lunacy Regulation (Ireland) Act was so evidently in breach of Art. 12 of the CRPD.  Whether the proposed Bill will actually be CRPD compliant remains open to debate (see one argument that it is not posted on Human Rights in Ireland blog) as indeed is the question of what exactly the CRPD requires in dealing with people with decision-making difficulties because of capacity impairment.

The legislation has been influenced by some Canadian legislative models and some of the ideas from Bach and Kerzner’s thought-provoking paper for the Law Commission of Ontario are also evident. The Bill introduces some important new concepts.  Among the most striking are the concept of a decision-assistance and co-decision making.  Both of these concepts try to address the requirement in Art.  12 (3) of the CRPD that ‘States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.’ Both concepts require the involvement of another person (a ‘decision-making assistant’ or a ‘co-decision-maker’ ) and it is clear that in many cases, the most likely person to fulfill the role will be a carer or family member. The assistant/co-decision-maker may be appointed by the person him or herself or by the court.

Looking at the Bill from a carer’s perspective, a couple of preliminary points emerge.  First, the functions of the decision-making assistant/co-decision-maker are extensive (s. 11 for decision-making assistant and s. 21 for co-decision-makers). Carers will be required to take on a legal role which, inevitably some will be more suited to than others.  In performing this role, carers will be subject to the supervision of the office of the Public Guardian and may have to make reports and be visited by a ‘special visitor’  (s. 59(1)).  The Public Guardian may also receive complaints about the way an assistant/co-decision maker is performing his or her functions and act on these complaints, including making an application to the High Court (although it is not exactly clear from the Bill  what the nature of this application will be- presumably it is to remove the person from the role).  It is clear though that formal oversight is going to be part of the process and carers are going to be the subject of this.  While, clearly, oversight is needed, a careful balance has to be struck between effective and appropriate protection of vulnerable people and ensuring that carers’ already difficult roles are not made unnecessarily more difficult.  It would also help to have some kind of support for carers in carrying out their legal role – the potential, for example, to involve an advocate where the legal task to be performed gets too complex or difficult.   Unfortunately, as currently presented, there is very little indication of support mechanisms for carers/family members in the Bill.

A second important provision from a carer’s perspective is s.53 which allows for a ‘informal decision-maker’ to make decisions in respect of ‘personal welfare’  (including healthcare and treatment).  Again this is most likely to be a carer.  As with s.5 of the Mental Capacity Act 2005, an informal decision-maker does not incur legal liability in respect o the decision which s/he would not have incurred if the person had capacity to consent and if s/he had consented to the decision.  This however is provided that the informal decision maker acts in accordance with the provisions of the Act – although no better indication than this is given. This is a dense and complex piece of legislation and this kind of imprecision is hardly helpful for carers operating on the ground.  The matter may of course be addressed in guidance and/or a Code of Practice – but as presently presented, a great deal more clarity is needed.

This is an important and very welcome Bill –  it is trying to achieve a difficult task – made all the more challenging by the context of austerity in which the legislation is going to be introduced.   The kinds of advocacy/educative frameworks which need to underpin this kind of legislation are unlikely to be funded in the near future.  Bearing this in mind, though, it is still important to engage with the framework presented to ensure that it serves its purpose in the best way achievable and this includes recognising the perspectives of carers.