In a judgment from a case heard prior to the decision in Re SRK but delivered afterwards (without referring to it) Senior Judge Lush has also weighed into the debates about state imputability in the context of Article 5.
In Re R  EWCOP 33, Senior Judge Lush had cause to consider the situation of Robert, a young man with intellectual disabilities, epilepsy and autism. He was non-verbal and frequently self-harmed, and required a high level of support from others to manage his activities of daily living. His mother, father and brother were his deputies (both for property and affairs and personal welfare). In January 2015, at a meeting convened by his social worker from LB Haringey, and attended by his family and members of the staff from his college, it was agreed that the best option for Robert, when he left college, would be a supported living placement. Haringey agreed to fund the family’s proposed choice of supported living placement, together with day care, and transport between the two.
In December 2015, Haringey applied to the Court of Protection for a determination as to whether Robert was deprived of his liberty (and if necessary) authorisation. Haringey contended that Robert was not being deprived of his liberty and was free to leave his current placement whenever he wished; and, in the event that there was any deprivation of his liberty, it was his family’s responsibility, as his court-appointed deputies, because they chose his current placement.
Senior Judge Lush held that Robert’s care arrangements satisfied the acid test for deprivation of liberty because: he was obliged to live in a particular place subject to constant monitoring and control; he had 1:1 support during the day and 1:2 support at night; all aspects of his care arrangements were controlled and supervised by the care staff; he was only allowed to leave the building with close supervision; he was not free to leave the building without permission; if he did attempt to leave without permission, he would be restrained by the care provider’s staff, naturally as an act of humanity; and the fact that his living arrangements were as comfortable as they possibly can be made no difference. He held that it was irrelevant that Robert was content and acquiesced with these arrangements. He also distinguished the decisions of Bodey J in the case of Mrs L and Mostyn J in PS on the basis that “[Mrs L] was living in her own home and had no supervision and control for large parts of the day. For broadly the same reasons, Robert’s circumstances are also different from Ben’s [in PS], who had appreciable privacy and was free to leave.”
He also found (at paragraph 58) that:
(a) Haringey was actively involved in every stage of the care planning process. It actually admitted that, ‘Haringey provided the financial support and specialist knowledge and commissioning ability to enable Robert to access the choice of providers and services that his parents have decided jointly with professional input are in his best interests.’
(b) Haringey convened the meeting on 23 January 2015, at which it was decided that the best option for Robert would be supported living.
(c) It provided specialist knowledge by drawing up a list of the organisations that support people with autism to live in the community.
(d) It supplied a copy of that list to Robert’s deputies and invited them to decide which package of support they thought would be most suitable for him.
(e) Whatever choice Robert’s deputies had made would have been subject to further approval by Haringey.
(f) Haringey carefully matched Robert with his two housemates to ensure that the three of them would be compatible with one another.
(g) Haringey funds Robert’s supported living placement and his day care and the transport costs between the two locations.
(h) The providers of the placement and the day care service are accountable to Haringey.
(i) The supported living placement and the day care service are subject to review by Haringey.”
“59. For the purposes of section 4 of the Mental Capacity Act 2005 Haringey was ultimately “the person making the determination” as to what was in Robert’s best interests and, because it was practicable and appropriate to consult them, pursuant to subsection 4(7), Haringey took into account the views of ‘any deputy appointed for the person by the court.’
The deputies’ views, however, did not automatically determine the outcome and were merely a factor that Haringey was required to take into account as part of the overall decision-making process.”
Because he found that the state (in the form of Haringey) was directly responsible for the deprivation of liberty, Senior Judge Lush did not then go on to consider issues of indirect state responsibility.
It is hardly surprising that Senior Judge Lush had little truck with Haringey’s attempt to disavow responsibility for what was clearly an objective confinement of Robert to which he could not consent. However, for my part, I would have focused solely upon the fact that, discharging public law obligations, they were commissioning and funding the arrangements under which Robert was (beneficently) confined. It seems to me that this is where Haringey’s real responsibility for the deprivation of liberty lay.
Indeed, I would respectfully suggest that the reference to s.4 MCA 2005 is something of a red herring here. On its face, if (as appears clear) Haringey was in discharge of its public law obligations willing to fund a range of placements, between which Robert’s deputies were able to choose on his behalf – then for purposes of the MCA (but not Article 5 ECHR), it seems to me that the decision-makers in this case were indeed the deputies. Senior Judge Lush’s decision may reflect the pragmatic reality that the public authority will be seen to be in the MCA driving seat in these situations, but it does not sit easily with the fact that only deputies, attorneys and the Court of Protection are able formally to make decisions on a person’s behalf, and in respect of all other – informal – decisions the MCA does not afford any particular status to one person or body (see G v E at paragraph 51). I will be exploring the issue of informal decision-making, the place of public authorities and the proper approach to s.5 MCA 2005 in an article forthcoming in the Elder Law Journal.
I would also suggest that when read together with the decision in Re SRK this decision reinforces the point that arguments as to direct vs indirect state responsibility are rather beside the point in these situations. Even if Haringey had been found not to be directly responsible, it seems to me inconceivable that it would not have been found to be have been on notice of the confinement and following Re SRK and Re A and C  EWHC 978 (Fam) to have been under the obligation imposed by the positive limb of Article 5 ECHR to have investigated the circumstances and, if the confinement could not be brought to an end (as by definition here it could not have been given that Haringey were in agreement with it) sought the necessary authority from the Court of Protection. I should note that, whereas in Re SRK, it would appear that the obligation to seek the authorisation of the Court of Protection lay with the deputy administering the personal injury settlement, there could have been no doubt that it would have lain with Haringey here as it was funding the arrangements.