The issue in this case was whether, in order for the UK to avoid being in breach of Article 5(1) of the ECHR, it is necessary for a welfare order to be made by the Court of Protection where the Patient is being deprived of his or her liberty in a private arrangement rather than in a care home or hospital (where DOLS would apply). The Secretary of State for Justice lost its appeal, the court ruling that Mr Justice Charles was right in saying 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 and thus a CoP welfare order must be obtained in such circumstances.
It is interesting to note that Sir Terence Etherton MR concluded by saying that "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 ... be for the Government to fill the gap as it had done in the case of the Bournewood gap."
Read the full text of the jugdment on Bailii
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