December 23rd, 2016 by James Goudie KC

The issue in SoS for Justice v Staffordshire County Council and SRK (2016) EWCA Civ 1317 was whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights (“the Convention”), it is necessary for a welfare order to be made by the Court of Protection (“the CoP”) pursuant to the Mental Capacity Act 2005 (“the MCA”) in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention (“Article 5(1)”). The appeal was by the Secretary of State for Justice (“the SoS”) from a welfare order made on 24 May 2016 pursuant to the MCA ss. 4 and 16 by Charles J as the Vice President of the CoP (“the May 2016 order”). By the May 2016 order the Judge (1) declared that (a) the second respondent, SRK, lacked capacity to conduct the proceedings and to make decisions relating to where he should live and what care and treatment he needed, and (b) the restrictions in place pursuant to his care plan constituted a deprivation of SRK’s liberty for the purposes of the MCA; and (2) (among other things) ordered that it was in SRK’s best interests to reside at Greenglade, his home (“the property”), and to receive care and support pursuant to care plans dated 1 July and 5 July 2015; and, to the extent that those arrangements and the restrictions in place pursuant to the care plans were a deprivation of SRK’s liberty, such deprivation of his liberty was thereby authorised as being in his best interests.  The SoS’s stance was that the alleged deprivation of liberty (arising out of the private care arrangements in SRK’s particular circumstances) was not imputable to the State and therefore it was not a deprivation of liberty for the purposes of the MCA. It was common ground that (1) SRK lacked capacity to make decisions on the regime of care, treatment and support that he should receive; (2) SRK’s care regime was in his best interests (within the MCA ss.1(5)) and the least restrictive available option to best promote his best interests (as required by the MCA s.1(6)); (3) the property was SRK’s private residential property; (4) the accommodation and package of care were arranged without any involvement by the Council; (5) the package of care was managed by a private specialist brain injury case manager; (6) the care was funded using compensation money; (7) the carers were provided to SRK privately; and (8) the arrangements confined SRK to the property for a not negligible length of time, and he was there subject to continuous supervision and control and was not free to leave.

As presented by the SoS’s counsel, Ms Rachel Kamm, the substance of the appeal fell broadly into two parts. She submitted, firstly, that the combination of the existing civil and criminal law and the obligations of public bodies to safeguard vulnerable individuals are sufficient to satisfy the positive obligation of the State under Article 5 where the day to day care of a person, who is objectively deprived of liberty but lacks capacity for the purposes of the MCA to consent to that loss of liberty, is being provided entirely privately rather than by the State. In particular, the Judge was wrong to conclude that, in such a situation, the State’s positive obligation under Article 5(1) can only be discharged if a welfare order is made by the CoP under the MCA s. 16 authorising the deprivation of liberty pursuant to the MCA s. 4A(3). She submitted, secondly, that responsibility for a “private” deprivation of liberty cannot be attributed to the State where, as in the present case, there was no reason for the local authority or any other public body to have any suspicions about abuse. So, in the present case, it is common ground that there has never been any suggestion that there was some deficiency in the care provided to SRK, or that something has been done that was not in his best interests or that the deprivation of his liberty was greater than it could and should have been.

The Court of Appeal said:-

“47.     The MCA imports the ECrtHR definition of deprivation of liberty since it provides in section 64(5) that the expression has the same meaning as in Article 5(1): Cheshire West at [19].

  1. It is common ground that the three components of deprivation of liberty within Article 5(1) are: (1) an objective component of confinement in a particular restricted place for a not negligible length of time; (2) a subjective component of lack of valid consent; and (3) the attribution of responsibility to the State: Cheshire West at [37]; Storck at [74] and [89]. As was common ground before the Judge and on this appeal, the first two components are satisfied in the case of SRK and only the third component is in issue. Storck is the leading authority on the third component.”

“53.     The ECrtHR found that the applicant’s deprivation of liberty in Storck was imputable to the State because of the direct involvement of the police in forcibly bringing her back to the clinic from which she had fled.

  1. In the present case, the Judge decided in favour of the SoS that there had been no direct involvement by the State in SRK’s deprivation of liberty. The second issue in paragraph [89] of Storck also does not arise. The only live question on this appeal is as to the third issue in paragraph [89] of Storck, namely whether SRK’s deprivation of liberty is imputable to the State because of its failure to discharge its positive obligation to protect him from deprivation of liberty contrary to Article 5(1).”

“56.     The ECrtHR concluded that Germany had violated its positive obligation under Article 5(1). It considered that the control exercised by the State in connection with the issuing of a licence for the conduct of a private clinic was not sufficient to ensure competent and regular supervisory control against a deprivation of liberty. That was because, without a court order, there was no positive obligation on the State to exercise supervisory control over the lawfulness of the detention and the State did not in fact exercise any such control for some 20 months.

  1. Having regard to the importance of the right to liberty and the vulnerable position of individuals like the applicant in Storck, the ECrtHR rejected (at [105]) the suggestion that it was a sufficient discharge of Germany’s positive obligation under Article 5(1) that German criminal law provided retrospectively for up to 10 years’ imprisonment for the offence of deprivation of liberty and the German civil law provided for compensation in tort for damage caused by an unlawful detention.”

“61.     Ms Kamm submitted that the Judge had wrongly approached the matter on the footing (see [114] of the judgment) that the State, in a case such as the present, has an absolute obligation “to provide a procedure prescribed by law that gives practical and effective substantive and procedural safeguards against the arbitrary deprivation of liberty of the relevant person”. She submitted that wrongly conflates the obligations of the State when it is itself caring for the incapacitated person with the State’s minimum requirement to take “reasonable steps” to prevent a deprivation of liberty of which the authorities have or ought to have knowledge, in accordance with paragraph [102] of the ECrtHR’s judgment in Storck. The SoS’s skeleton argument criticised the Judge’s approach as an unwarranted “gold standard” approach.

  1. I do not accept that the Judge approached the matter incorrectly. Ms Kamm is entirely correct that the State’s positive obligation under Article 5(1) is to take reasonable steps to prevent arbitrary deprivation of liberty. The Judge adequately expressed that test in his own language in paragraph [145] in the “Discussion and Conclusions” section of his judgment as whether, absent an application to the CoP for a welfare order, there existed “a sufficient decision making process and independent check to guard against arbitrary detention and so to satisfy the positive obligations by Article 5 and its spirit.”
  1. Ms Kamm submitted that adequate safeguards for the protection of someone in SRK’s position are in place. As the Judge himself recognised (at [113]), Storck does not help on whether, in any particular case, the proper or the defective performance of a regime that has been put in place pursuant to the positive requirement of Article 5(1) would amount to a violation of that positive obligation. Storck does not identify what has to be in place to meet the minimum requirement of Article 5(1).
  1. It is true, as Ms Kamm pointed out, that the ECrtHR in Storck left open the possibility that a regime short of the requirement of a Court order and court supervision might be adequate for the State to meet its positive obligations under Article 5(1). The ECrtHR observed (at [107]) that, after the end of the applicant’s detention in the private clinic, German legislation had introduced further safeguards for individuals detained in psychiatric institutions; in particular, visiting commissions were created to inspect psychiatric institutions, to oversee whether the rights of patients were respected and to give patients the opportunity to raise complaints. The ECrtHR said that those mechanisms “came too late for the applicant” and did not express any view about whether they would have been sufficient to discharge the State’s positive obligation under Article 5(1).
  1. The SoS’s case is that, notwithstanding the absence of a requirement for a welfare order from the CoP, the United Kingdom’s existing domestic regime of law, supervision and regulation in respect of incapacitated persons who are being treated and supported entirely in private accommodation by private providers is sufficient compliance with the State’s positive obligation under Article 5(1), at least where the public authorities have no reason to believe that there has been any abuse or mistreatment.
  1. In that connection, the SoS relies particularly on the functions of the Care Quality Commission (“the CQC”), the functions of the Public Guardian, the professional responsibilities of doctors and other health professionals, the safeguarding obligations of local authorities, and (in the words of the SoS’s skeleton argument) “the general framework of the criminal justice system and civil law”.
  1. The Judge was both entitled, and right, to reject that argument.”

“72.     Under the Care Act 2014 local authorities have an adult safeguarding role. The Judge acknowledged its importance (in [138]). They have a duty to promote an individual’s wellbeing (s.1), including protection from physical and mental abuse. Each local authority has an obligation to make an assessment where it appears that an adult in its area may have needs for care and support (s.9), an obligation to make enquiries to decide what action should be taken where the local authority has reasonable cause to suspect that an adult in its area has needs for care and support and is experiencing, or is at risk of, abuse or neglect (s.42), and an obligation to arrange for an independent person to represent the individual when it is carrying out an assessment or an enquiry or review under the Act (ss.67 and 68). The obligation of the local authority is, therefore, to investigate, support and sometimes to make an application to the court (or to consider doing those things) in an appropriate case.

  1. Ms Kamm submitted that it was hard to discern from the Judge’s judgment why the current regime of law, supervision and regulation was not sufficient, particularly in the light of what the Judge said (at [147]) about a further independent check by the CoP in the present case and many other such cases not adding anything other than unnecessary expense and diversion of private and public resources which would be better focused elsewhere. I do not agree.
  1. The critical point, as Ms Nageena Khalique QC, for the Council, emphasised, is that, although local authorities and the CQC have responsibilities for the quality of care and the protection of persons in SRK’s position, they will only act if someone has drawn the matter to their attention and there is nothing to trigger a periodic assessment. The same is true of doctors and other health professionals. Save where there are already proceedings in the CoP (when the functions of the Public Guardian will be engaged), the current domestic regime depends on people reporting something is wrong, and even then it will only be a notification of grounds for concern at that specific moment in time. That may be particularly problematic in cases where no parents or other family members are involved in the care and treatment. It does not meet the obligation of the State under Article 5(1) to take reasonable steps to prevent arbitrary deprivation of liberty.
  1. For the same reasons, as was stated by the ECrtHR in Storck, criminal and civil law sanctions which operate retrospectively after arbitrary deprivation of liberty has occurred, are insufficient to discharge the State’s positive obligation under Article 5(1).”

“78.     The Judge was fully entitled, and right, to conclude in the circumstances in paragraphs [143] and [146] that, absent the making of a welfare order by the CoP, there are insufficient procedural safeguards against arbitrary detention in a purely private care regime.

  1. The fact that, as the Judge acknowledged in paragraph [147], in the present and in many other such cases, a further independent check by the CoP will add nothing, other than unnecessary expense and diversion of resources, does not detract from the legitimacy of his conclusion since, as he observed in paragraph [148], there are other cases where the person lacking capacity will not have supporting family members or friends, and deputies and local authorities may not act to the highest requisite standards. No doubt, as the Judge observed in paragraph [148(v)], the practical burden of such applications would be reduced, in a case such that of SRK, by a streamlined paper application for the making of the initial welfare order and paper reviews.”

“83.     Turning to the second substantive part of Ms Kamm’s submissions, I do not accept the SoS’s argument that, since each case of an alleged breach of Article 5(1) is fact dependant, there was no breach by the State of its positive obligation under Article 5(1) in the present case because SRK’s care regime was in his best interests and was the least restrictive available option, and there was nothing to suggest the contrary to the Council or that there was any abuse. That is an argument that, even where there is objective and subjective deprivation of liberty of an individual, of which the State is aware, there can be no breach of Article 5(1) if the individual is being cared for, supported and treated entirely privately and happens to be receiving a proper standard of care in accordance with the requirements of the MCA at the particular time the State becomes aware of the deprivation of liberty. There is nothing in the jurisprudence to support such an argument. It runs counter to the interpretation and application of the spirit of Article 5(1) in, for example, HL and Cheshire West, in which the focus was entirely on the State’s duty to prevent arbitrary deprivation of liberty and not on the quality of care and treatment actually being provided or, indeed, on whether the best and least restrictive treatment would not have involved deprivation of liberty of the individuals in those cases.

  1. Finally, it is important to note that, while an application to the CoP is necessary in the present state of law and practice for the State to discharge its positive obligation under Article 5(1), such a step might not be essential if a different legislative and practical regime were to provide for proactive investigation by a suitable independent body and periodic reviews. …”

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