The Court of Appeal has dismissed the Secretary of State’s appeal against the decision of Charles J in Re SRK  EWCOP 27. By way of refresher, Charles J found in that case that the state was indirectly responsible for “private” deprivations of liberty arising out of arrangements made by deputies administering personal injury payments. The Secretary of State for Justice (‘SSJ’) appealed the decision on two grounds, contending that:
1. The combination of the existing civil and criminal law and the obligations of public bodies to safeguard vulnerable individuals were sufficient to satisfy the positive obligation of the State under Article 5 where the day to day care of a person, who was objectively deprived of liberty but lacked capacity for the purposes of the MCA to consent to that loss of liberty, was being provided entirely privately rather than by the State. In particular, the SSJ contended that Charles J was wrong to conclude that, in such a situation, the State’s positive obligation under Article 5(1) ECHR can only be discharged if a welfare order is made by the CoP under s.16 MCA authorising the deprivation of liberty pursuant to s.4A(3) MCA;
2. Responsibility for a “private” deprivation of liberty could not be attributed to the State in a case such as that of SRK, there was no reason for the local authority or any other public body to have any suspicions about abuse, that there was some deficiency in the care provided to the person, that something has been done that was not in their best interests or that the deprivation of their liberty was greater than it could and should have been.
Sir Terence Etherton MR, giving the sole reasoned judgment, had little hesitation in dismissing both of these grounds of appeal.
State’s Article 5 obligations
The only live question on the appeal was whether SRK’s deprivation of liberty was imputable to the state under the third limb identified in Storck: i.e. by way of its failure to discharge its positive obligation to protect him from deprivation of liberty contrary to Article 5(1).
The Master of Rolls held, whilst, that the SSJ had been correct to identify that the State’s positive obligation under Article 5(1) is to take reasonable steps to prevent arbitrary deprivation of liberty, Charles J had adequately expressed that test in his own language. As Charles J had noted in his judgment, Storck does not help on whether, in any particular case, the proper or the defective performance of a regime that has been put in place pursuant to the positive requirement of Article 5(1) would amount to a violation of that positive obligation. In other words, the Master of the Rolls held (at para 63) “Storck does not identify what has to be in place to meet the minimum requirement of Article 5(1).”
The Master of the Rolls accepted that the ECrtHR in Storck left open the possibility that a regime short of the requirement of a court order and court supervision might be adequate for the State to meet its positive obligations under Article 5(1). It was the SSJ’s case, he noted, that “notwithstanding the absence of a requirement for a welfare order from the CoP, the United Kingdom’s existing domestic regime of law, supervision and regulation in respect of incapacitated persons who are being treated and supported entirely in private accommodation by private providers is sufficient compliance with the State’s positive obligation under Article 5(1), at least where the public authorities have no reason to believe that there has been any abuse or mistreatment” (para 65). The SSJ relied particularly on the functions of the Care Quality Commission, the functions of the Public Guardian, the professional responsibilities of doctors and other health professionals, the safeguarding obligations of local authorities, and (in the words of the SSJ’s skeleton argument) “the general framework of the criminal justice system and civil law.”
However, Sir Terence Etherton MR held, Charles J had been both entitled, and right, to dismiss that argument:
74. The critical point, as Ms Nageena Khalique QC, for the Council, emphasised, is that, although local authorities and the CQC have responsibilities for the quality of care and the 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 same is true of doctors and other health professionals. Save where there are already proceedings in the CoP (when the functions of the Public Guardian will be engaged), the current domestic regime depends on people reporting something is wrong, and even then it will only be a notification of grounds for concern at that specific moment in time. That may be particularly problematic in cases where no parents or other family members are involved in the care and treatment. It does not meet the obligation of the State under Article 5(1) to take reasonable steps to prevent arbitrary deprivation of liberty.
75. For the same reasons, as was stated by the ECrtHR in Storck, 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).
Sir Terence Etherton MR therefore held that:
78. The Judge 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.
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.
The relevance of abuse
Sir Terence Etherton MR was equally dismissive of the second ground of appeal:
83. Turning to the second substantive part of Ms Kamm’s submissions, I do not accept the SoS’s argument that, since each case of an alleged breach of Article 5(1) is fact dependant, there was no breach by the State of its positive obligation under Article 5(1) in the present case because SRK’s care regime was in his best interests and was the least restrictive available option, and there was nothing to suggest the contrary to the Council or that there was any abuse. That is an argument that, even where there is objective and subjective deprivation of liberty of an individual, of which the State is aware, there can be no breach of Article 5(1) if the individual is being cared for, supported and treated entirely privately and happens to be receiving a proper standard of care in accordance with the requirements of the MCA at the particular time the State becomes aware of the deprivation of liberty. There is nothing in the jurisprudence to support such an argument. It runs counter to the interpretation and application of the spirit of Article 5(1) in, for example, HL and Cheshire West, in which the focus was entirely on the State’s duty to prevent arbitrary deprivation of liberty and not on the quality of care and treatment actually being provided or, indeed, on whether the best and least restrictive treatment would not have involved deprivation of liberty of the individuals in those cases.
By way of concluding observation (without express reference to the Law Commission’s work, but surely with this in mind), the Master of the Rolls noted:
83. inally, 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.
It is difficult to see how the Court of Appeal could have reached any other conclusion than that reached by Sir Terence Etherton MR, although it is notable that he did not seem to have reached it with the same degree of reluctance as did Charles J.
The ratio of the decision of the Court of Appeal would appear – to my mind – to apply to “private” arrangements made by any court appointed deputy (whether or not they are administering a personal injury payout). Trickier is the question of whether or not they apply to “private” arrangements made by an attorney as an attorney, unlike a deputy, is not appointed by the state. However, Charles J had at first instance referred to the potential for an attorney paid personal injury damages as one of those who should be required to know that the regime of care and treatment creates a deprivation of liberty within Article 5(1), and Sir Terence Etherton MR made no comment upon this (see para 60).
More broadly, in the circumstances, it seems to me that there is now really very little distinction between “public” and “private” deprivations of liberty: wherever the state is or, ought, to be aware of a person being confined under arrangements to which they cannot consent, then they will need to take steps to ensure that confinement is authorised. Absent legislative change to enable administrative procedures to be used, it will be necessary to obtain authority from the Court of Protection under the Re X procedure.
It is in this regard unfortunate that the Court of Appeal did not take the opportunity to confirm whether it is, in fact, the responsibility of the deputy (or – by analogy – attorney) to seek such an order in such cases. What, of course, is particularly problematic with any approach which requires steps to be taken on behalf of the person concerned is that they will inevitably cost money, money which (in most cases) will have to come from their estate. In cases such as SRK’s, it is possible to factor this into any personal injury award, but in other cases it does come dangerously close to suggesting that people should pay for the privilege of being detained.
Until and unless either this decision is successfully appealed, or the Supreme Court or Strasbourg determines that “deprivation of liberty” has a narrower meaning than that given at present, it remains the case, therefore, that the tentacles of the state will – inevitably – have to extend ever further into private settings in the name of protecting Article 5 rights. I have my own thoughts as to how we might find a principled way to define deprivation of liberty in a way which returns it to its core meaning of coercion, but those are for another day.