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 is 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 making the standard declarations in terms of capacity, directing where he should live and what care and treatment is required and that the restrictions in place pursuant with the care plan constituted a deprivation of liberty. The order provided for Irwin Mitchell Trust Corporation (“IMTC”) to apply to the court for a review of the order in various specified circumstances.
SRK sustained life changing injuries in a road traffic accident in 2005. It included a brain injury and severe physical disabilities necessitating 24-hour care and assistance. He had very limited communication. He received a substantial award of damages which provided the funds for the accommodation and 24-hour care package the rest of his life. He’s in his late 30s and the damages award is managed by IMTC.
The package of care was arranged and provided without any input from the local authority or any other public authority. The care is supervised by a private specialist brain injury case manager and is provided by private carers. The Council were unaware of this arrangement until it received a letter from IMTC informing the council that the arrangements for accommodation and care at the property may amount to a deprivation of liberty. The council then undertook an assessment and concluded that SRK was being deprived of his liberty for the purposes of the MCA and article 5(1).
At the hearing before Charles J the stance taken by the Secretary of State was whether 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 was not a deprivation of liberty for the purposes of the MCA.
Charles J sated at paragraph 48 “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 ; Storck at  and . 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.” The judge then went on to consider a detailed analysis of the factual matrix in Storck having also considered in detail Baroness Hale at paragraph 37 in Cheshire West and Chester Council v P & Anor  UKSC 19:
“The second question, therefore, is what the essential character of a deprivation of liberty is? It is common ground that three components can be derived from Storck 43 EHRR 96, paras 74 and 89, confirmed in Stanev 55 ECHR 696, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state.”
In the Court of Appeal it recorded that there was common ground before Charles J that the first and second components - the objective and subjective deprivation of liberty was satisfied. What all other parties other than the Secretary of State contended was that the third component was also satisfied.
Charles J analysis as recorded by the Court of Appeal at paragraph 29 is important to consider where he says:
“9. I have concluded that a welfare order is needed. I have reached this conclusion by a route that differs from the arguments advanced in favour of it but I agree that the third component is satisfied. I have set out my analysis under headings with my conclusions at paragraphs 128 to 155.
10. On my analysis:
(1) The critical issue is whether, absent the making of a welfare order by the COP in cases within the class represented by SRK’s case, the amendments to the MCA directed to filling the “Bournewood gap” have achieved that purpose in those cases.
(2) In my view, it would not do so.
(3) In my view, a welfare order needs to be made in such cases to provide a procedure that protects the relevant person from arbitrary detention and so avoids a violation of the State’s positive obligations under and the spirit of Article 5.
(4) That conclusion is based on the premise that the State knows or ought to know of the situation on the ground.
(5) That knowledge exists in SRK’s case and on my approach it would exist in all cases in the class it represents. This is because the court that awards the damages, the COP when appointing a property and affairs deputy and the deputy or the trustees or attorney or other person to whom the damages are paid should take steps to ensure (a) that the relevant local authority with duties to safeguard adults knows of the regime of care, and (b) that if, as here, the least restrictive available care regime to best promote P’s best interests creates a situation on the ground that satisfies the objective and subjective components of a deprivation of liberty (and so a deprivation of liberty within Article 5) a welfare order based on that regime of care is made by the COP.
(6) This conclusion should be factored into the calculation of damages awards in the future".
The Judge described as follows the approach to be applied to determine whether there is an Article 5 deprivation of liberty:
“29. If and when a (private) deprivation of liberty within Article 5 exists on the ground it then has to be considered whether it is the responsibility of the State, and so an Article 5 Deprivation of Liberty. That involves a staged approach.
30. Firstly, it should be considered whether the direct involvement of the State is sufficient to have that result. If it is, the State is responsible for it as the body or one of the bodies that has put it in place and is implementing it.
31. Secondly, if the State is not directly responsible for the deprivation of liberty within Article 5, it has to be considered whether the domestic regime of law, supervision and regulation satisfies the obligations imposed on the State by Article 5. If it does not, that could of itself make the State responsible for that deprivation of liberty but, on a fact sensitive and backwards looking approach, what the State (or others) did in a given case could avoid that result or create a result that the individual could not establish a breach of his Article 5 right.
32. Thirdly, if the State is not directly responsible and the domestic regime of law, supervision and regulation satisfies, or if properly implemented would satisfy, the positive obligations imposed on a State by Article 5 to create an appropriate regime of law, supervision and regulation it then has to be considered whether the interpretation and application of that regime in the circumstances of the case has satisfied the positive obligations imposed by and further or alternatively the spirit and so the underlying purposes of Article 5.”
The Judge said (at  to ) that, in the context of examining the provisions of the MCA to see whether they satisfied the positive obligation imposed on the State by “Article 5 and its spirit”, the “Bournewood gap” and so the conclusions of the ECrtHR in HL were relevant. He referred to the conclusions of the ECrtHR in that case.
The Judge said (at ) that it was not easy to see what value would be added to the protection of SRK by the making of a welfare order and its review by the CoP since the CoP is reliant on information provided by others and SRK had active and caring support from members of his family, his care team and his property and affairs deputy; and further, the Council was aware of his case and there was no real doubt that if any of the persons who are actively involved in his life thought that the Council, and further or alternatively, the CoP should become involved they would initiate this. He observed (at ), however, that it was not always the case that someone in the class of case represented by SRK would have the support of family or friends who take an active role and interest in their care and life.
The Judge said (at ) that it was not easy to give an accurate estimate of the number of cases represented by the present one, in which the accommodation and all of the care are provided privately. He concluded (at ) that "the class of case represented by SRK is significant but would not form a high percentage of the cases in which a welfare order to authorise a deprivation of liberty should be sought from the CoP."
The Secretary of State argued that a combination of the existing civil and criminal law and the obligations of public bodies such as the CQC and the OPG are sufficient to satisfy the positive obligation of the state under Article 5; furthermore that the 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.
The appeal by the Secretary of State failed - it having been raised and the SoS was joined as a respondent so that she could make submissions as to (in the words of the order):
“the circumstances and the extent to which the State is imputable in any deprivation of liberty arising out of private care arrangements in light of the potentially far reaching consequences for state bodies and the court.”
Whilst the Court of Appeal accepted that the State’s positive obligation under Article 5(1) is to take reasonable steps to prevent arbitrary deprivation of liberty, the court did not accept that the combination of the functions of the CQC, functions of the PG and general framework of the criminal justice system and civil law are sufficient. The Court of Appeal highlighted that the CQC is not directed at the arbitrariness of detention - the CQC is concerned about the conditions of detention and supervision of detention whereas article 5(1) is addressing the fact and arbitrariness of the detention itself. The court also considered the duties imposed under the Health and Social Care Act 2008 and the Care Act 2014 (the latter providing the local authorities with an adult safeguarding role) but rejected this as a sufficient protection against the arbitrariness of detention. The court accepted the point raised by the council that although local authorities and the CQC have responsibilities for the quality of care and 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 court noted it was the same in respect of doctors and other health professionals. The court noted it may be particularly problematic in cases where no parents or other family members are involved in the care and treatment and would have no one to notify the public authority of grounds for concern. Accordingly the Court of Appeal considered the same reasons as stated in the European Court decision in Storck, that 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) – [ paragraph 75]
The Court of Appeal determined that Charles J was fully entitled, and right, to conclude in the circumstances in paragraphs  and  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.
It is interesting to note that the Court of Appeal highlighted at paragraph 79:
“The fact that, as the Judge acknowledged in paragraph , 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 , 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.”
Furthermore, the final comments of Sir Terence Etherton MR at paragraph 84 would appear to be inviting the government to make the necessary legislative changes to prevent the floodgates of applications before the COP when he said:
“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. It would, as Ms Kamm said, be for the Government to fill the gap as it had done in the case of the Bournewood gap.”
Accordingly, at the present time, all private care arrangements will have to be subject to review, by the CoP and this will place a considerable burden on the already stretched CoP. The fact as in this case that the CoP had already approved the substantial award of damages did not relieve the State of its burden. Legislative changes will clearly need to be put in place as a matter of urgency. Whilst the Court of Appeal envisaged a “streamlined approach” this will not lessen the burden on local authorities and their best interest assessors for whom there is a woeful shortage already. No doubt this decision will be met by a high degree of consternation by local authority lawyers and no doubt the regional CoP hubs.
Read the full text of the judgment on Bailii