In 2005, SRK was involved in a road traffic accident. He suffered a severe head injury and has since been diagnosed with acquired brain injury, resulting in the need for round the clock care and treatment. The accident left SRK without capacity to make decisions on his entire care regime, including regarding treatment and proposed support. He was awarded damages which helped to fund the purchase and adaptation of a property where SRK now resides and is cared for within the private sector. There is no outside input from the Applicant council or any other public authority.
Prior to the decision of Cheshire West, SRK's property and affairs deputy notified the Applicant council of a potential deprivation of SRK's liberty as a result of his care. The council subsequently carried out assessments.
In August 2015 an application was made to the Court of Protection for a welfare order to authorise a deprivation of SRK's liberty. The test to be applied is whether the care regime is the least restrictive available option to best promote SRK's best interests. All parties were in agreement this test was satisfied. The issue was whether or not responsibility should be attributed to the state, either directly or indirectly.
In essence an individual has substantive and procedural rights under Article 5 ECHR which offer protection from arbitrary detention. Therefore, it is important to note:
(a) where the individual concerned lacks the relevant capacity to consent, a deprivation of liberty must be in accordance with the law; and
(b) the individual detained must have access to a court to enable him to challenge his deprivation of liberty.
Mr Justice Charles was referred to Cheshire West and Chester Council v P and another  UKSC 19. At paragraph 37 of Baroness Hale's judgment, she summarised the three essential components of Article 5 as:
(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.
If these three components are present, the individual falls within the scope of Article 5. It was submitted that all three components apply to SRK's care regime. SRK's litigation friend submitted that the definition of a deprivation of liberty in the Mental Capacity Act 2005 does not require the attribution of responsibility to the state ("the third component"). Therefore, it was submitted at paragraph 6 of the judgment:
i) no-one on the ground can lawfully impose SRK's care regime on him by making decisions in his best interests to provide and so fund it, and so,
ii) a welfare order based on SRK's care regime must be made by the COP, which will authorise the deprivation of liberty it creates on the ground.
The Secretary of State argued that responsibility for SRK's care regime is not attributed to the state as his care needs were managed within the private sector. It was submitted the MCA can be relied on and there is no need for a welfare order.
It is particularly important to consider Storck  ECHR 406. This dealt with the issue of State responsibility, if and when an individual is deprived of their liberty, with reference to the interpretation and application of Article 5(1) ECHR. It should be noted that Storck highlighted that the ECHR looks at what has happened and, more importantly, what the State has not done. The State can be responsible where they have direct involvement with the individual, but also where they have failed to comply with their positive obligations under Article 5.
Section 5 of the MCA provides a prescribed procedure that enables persons on the ground to make effective and lawful decisions about the care and treatment of a person who lacks capacity. However, the DOLS safeguards do not apply in this case as SRK does not reside in a hospital or a care home.
Charles J set out that the next question to ask: what, if any, was the State's involvement in SRK's deprivation of liberty before the application for a welfare order was made? If it can be concluded they were directly involved, then the third component was satisfied at the date of the application.
Mr Justice Charles concluded a welfare order was needed to provide a procedure to protect SRK from arbitrary detention and therefore avoid a violation of the State's positive obligations under Article 5. He emphasised that this is based on a premise that the State knows or ought to know the situation on the ground. He expanded this further in paragraph 135:
knowledge of the courts means that the State has that knowledge (or cannot successfully say that it does not).
By simply failing to comply with their positive obligations under Article 5, the State can become indirectly involved. Charles J explained that the deputy for property and affairs would therefore need to notify the relevant local authority who could then exercise their statutory duties. If done, this would directly involve the State in any event.
Charles J has clearly followed the trend of preceding cases by continuing to place the onus on the State to act on and assume responsibility. In reality, this judgment places obligations not only on the State, but also on any appointed deputy.
Whilst this case provides some clarity surrounding deprivation of liberty within the private sector, Charles J has not placed the onus on the local authority to bring the application for a welfare order. He appears to suggest the onus of any application could be placed on the appointed deputy. In truth however, regardless of who brings the application, once the court is aware this means the State ought to be aware. The mere fact of notice therefore ought to attribute responsibility to the state.
Finally, this judgment may affect future quantum of damages in personal injury cases. Charles J stated that where a welfare order is made this should be taken into consideration when awarding damages for the injured party.
Read the full text of the judgment on Bailii