Private deprivations of liberty, deputies, and the state

In Staffordshire County Council v SRK & Ors [2016] EWCOP 27, Charles J has grappled with the thorny question of when the state’s positive obligations under article 5 ECHR are engaged.  The question arose in the specific context of arrangements made by a deputy administering a personal injury compensation payment, so Charles J’s conclusions may not be generally applicable.   However, as this is one of the first cases to examine in any detail this aspect of the article 5 jurisprudence, they will no doubt be examined in detail by local authorities and CCGs in particular, as they continue to grapple with when a “private” deprivation of liberty is a state responsibility – and hence when they will need to be considering going to court.

By way of quick refresher, to fall within the scope of article 5 ECHR, there must be three elements to the arrangements made for someone:

  1. the objective component of confinement in a particular restricted place for a not negligible length of time;
  2.  the subjective component of lack of valid consent; and
  3.  the attribution of responsibility to the state.

As Charles J noted, the terminology in this area is complicated by the fact that not all situations of objective confinement without subjective consent will fall within article 5, because not all will include the necessary three elements.   It will only be where a private deprivation of liberty (i.e. a situation satisfying the first two elements) is attributable to the state that it becomes (in the capitalisation he helpfully used) an Article 5 Deprivation of Liberty.

In the case before Charles J, it was common ground between the deputy, SRK (by his litigation friend his sister) and the Secretary of State for Justice (who was joined by Charles J in light of the issues raised by the case) that SRK was both objectively confined, and could not give the requisite valid consent.   The arrangements were made without the involvement of the local authority, so they were a private deprivation of liberty.    The question was therefore whether they could be said to be attributable to the state to make them an Article 5 Deprivation of Liberty.

Charles J’s judgment is more than usually complex, and will be examined in detail in the next issue of the Mental Capacity Law Newsletter (due out on 6 June), but helpfully he sets out a summary of his conclusions at the outset.  In short, he has concluded that it is necessary for steps to be taken to obtain welfare orders from the Court of Protection in cases where the arrangements made by deputies administering damages awards.   This is not because the state is directly responsible for the arrangements, but rather because:

“since Cheshire West (a) the court awarding damages, (b) the COP when appointing a deputy to hold and manage them and the deputy and (c) trustees or an attorney to whom a damages award is paid and who must make decisions on its application in P’s best interests should all be aware that the regime of care and treatment of persons in an equivalent position to SRK creates a (private) deprivation of liberty within Article 5” (paragraph 134).

That being so, a deputy is therefore required to bring the situation to the attention of the local authority with safeguarding responsibilities for the adult, because:

By so doing he would be taking proper steps to check whether D and/or the local authority could put in place arrangements that meant that P was not objectively deprived of his liberty or that would make the care arrangements less restrictive and/or remove any restraint. More generally he would be enabling public authorities and others with duties to safeguard adults to perform such duties and so the role described by Munby J in Re A and Re C, which is an important part of the regime of law, supervision and regulation in England and Wales” (paragraph 58).

As Charles J made clear, this in turn, means that:

137.  […] the local authority with the adult safeguarding role described by Munby J in Re A and Re C knows or should know of the situation on the ground and, as Munby J concluded, I consider that this triggers its obligations to investigate, to support and sometimes to make an application to court (or to consider doing those things)

138. The safeguarding role of local authorities is an important part of the domestic regime of law, supervision and regulation. If the obligations of the local authority with that safeguarding role to investigate, to support and sometimes to make an application to court (or to consider doing those things) are not triggered in this way the argument that a failure of the COP to make a welfare order to authorise a (private) deprivation of liberty within Article 5 would violate Article 5, and so satisfy the third component of an Article 5 Deprivation of Liberty, would be stronger. This is because the domestic regime of law, supervision and regulation would be less effective to safeguard against an arbitrary detention.”

That would have not meant that all cases had to go to the Court of Protection if it could properly be said that the “Bournewood gap” that existed in relation to private deprivations of liberty were filled by “a regime of law, supervision and regulation relating to SRK’s (private) deprivation of liberty within Article 5 that provides for: (i) an initial decision and reviews leading to further decisions that rely on s. 5 of the MCA and so on a conclusion by the decision makers on the ground that the regime of care and treatment is in SRK’s best interests because it is the least restrictive available option to best promote those interests, and (ii) the performance by the relevant local authority (and the CQC) of their investigatory, supervisory and regulatory roles to monitor the existence and results of that decision making process” (paragraph 140).   In other words, absent the making of a welfare order by the COP, would the lack of a defined decision making procedure for the initial decision and its review under which defined assessments have to be carried out mean that there were insufficient procedural safeguards to secure against the risk of arbitrary deprivation of liberty identified by the ECtHR in HL?

With “real reluctance because it seems to me that in this and many other such cases a further independent check by the COP will add nothing other than unnecessary expense and diversion of private and public resources which would be better focused elsewhere,” Charles J was compelled to the conclusion that a failure to make a welfare order would be a violation of the positive obligations imposed on the State by and the spirit, of Article 5 and mean that the State was responsible for that deprivation of liberty (see paras 146-7).

Charles J was also mindful of the cautious approach taken in Cheshire West and the following factors (para 148):

  1. that the need for a welfare order and evidence supporting it will focus the minds of those involved on the ground, and thereby reduce the risk of misjudgements and professional lapses (see paragraph 121 of HL v United Kingdom cited above) by promoting both (a) decision making and reviews, and (b) investigation, supervision and regulation on a properly informed basis,
  2.  that deputies and local authorities will not act in the same way in all cases,
  3.  that not all Ps will have supporting family members or friends,
  4.  that a different regime dependent on the identity of those involved would be impracticable or arbitrary.

Charles J nonetheless emphasised that where a deputy, providers and a local authority have properly examined the issues, and their conclusion is supported by the family a streamlined and so paper procedure for the making of the initial welfare order and paper reviews is likely to be appropriate.   Charles J considered whether a regular (annual) review could be substituted by one initiated by the deputy, the family or the local authority but ultimately concluded that it would suffer from the same procedural defects as the initial decision if the focus of having to seek the review at defined intervals was not included.

Charles J did not expressly provide that it would be for the local authority to bring the requisite application in any case, and part of his judgment (para 59) suggests that it would be for the deputy (although if a deputy is not a public authority and therefore an organ of the state it is unclear on what basis this obligation could be  imposed under article 5). In any event, the tenor of his judgment strongly suggests that the local authority should be astute to consider whether it must do so as an aspect of their safeguarding duties.   Charles J emphasised that the additional costs that are likely to be incurred as a result of deputies taking the steps necessary as a result of his conclusion should be factored into personal injury proceedings in future.

As regards broader issues of private deprivation of liberty, Charles J was at pains to point out that it will not be every such case which will be an Article 5 Deprivation of Liberty, although the end point of his analysis as regards deputies means that it is not entirely easy to see when, if the state has knowledge of a private deprivation of liberty, the local authority with safeguarding responsibilities will not be under an obligation at least to consider seeking a welfare order so as to ensure that the individual in question is not subject to an arbitrary deprivation of liberty.


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