Deprivation of liberty and the attribution of State responsibility

Staffordshire County Council v SRK & Others [2016] EWCOP 27

This is an important case which considers the State’s obligations under Article 5 ECHR in relation to whether a deprivation of liberty can be created when an incapacitated person’s care regime is privately funded and whether such a deprivation of liberty has to be authorised by the Court through a Welfare Order.

The facts

In 2005 SRK had been involved in a road traffic accident and as a consequence suffered a serious brain injury. Due to the nature and seriousness of his brain injury, SRK required twenty-four hour care. SRK received a substantial award of damages and this funded the purchase of a bungalow that was duly adapted and a private sector care package.  The damages award was paid to meet the costs of SRK’s accommodation and care for the remainder of his life. SRK was now in his late thirties.

SRK’s injuries were such that he had to be under continuous supervision and control either by his support workers or assisted technology. He was not free to leave the bungalow. SRK lacked the capacity to consent to the care arrangements that were in place. The accommodation and care regime were provided without any input from the Local Authority or any other Public Authority. The care package was arranged by a private brain specialist care manager and the carers provided to SRK privately. The care costs were administered by SRK’s financial Deputy (‘IMTC’).

Before the decision of Cheshire West, SRK’s IMTC notified the Local Authority of the potential deprivation of SRK’s liberty due to his care regime and the care arrangements were registered with the Care Quality Commission. The Local Authority accordingly carried out assessments.

In August 2015 an application was made by the Local Authority to the Court of Protection under section 16 of the Mental Capacity Act 2005 (‘MCA 2005’) for a Welfare Order to authorise a deprivation of SRK’s liberty.  The application used the Re X procedure and accordingly a COP DOL 10. All parties agreed that two of the three limbs for the test of a deprivation of liberty were satisfied under Article 5 ECHR but the issue that arose was over the third limb and whether SRK’s confinement was a deprivation of liberty imputable to the State.

The law

The central principle of Article 5 ECHR is that it gives the individual substantive and procedural rights which protect them from arbitrary detention.

The most relevant parts of Article 5 ECHR are:-

‘Everyone has the right of liberty and security of person. No one shall be deprived of their liberty save in the following cases and in accordance with a procedure prescribed by law:

(e)          the lawful detentions of persons for the prevention of spreading infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants’

Article 5(4) provides that:

‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.

Article 5 (1) has been identified as having three elements, all of which need to be satisfied before a particular set of circumstances will amount to a deprivation of liberty falling within the scope of the Article and this is commonly known as the ‘acid test’, being Baroness Hale’s significant judgment in Cheshire West and Chester Council v P and another [2014] UKSC 19 (‘Cheshire West’). Those three elements are:-

• The objective component of confinement in a particular restricted place for a not negligible length of time
• The subjective component of lack of valid consent; and
• The attribution of responsibility to the State

In the event that all three limbs of the ‘acid test’ are present then the individual falls under the umbrella of Article 5.

In this particular case, the Secretary of State argued that the third limb of the test, the attribution of State responsibility, did not apply to a private care package and  accordingly the care package was lawful without the requirement of a Welfare Order being made under the MCA 2005. SRK’s litigation friend, the Official Solicitor, submitted  that the definition of a deprivation of liberty in the Mental Capacity Act does not require State responsibility and that a Welfare Order based on SRK’s care regime must be made by the Court which ‘will authorise the deprivation of liberty it creates on the ground’.

The decision

Mr Justice Charles ruled that a Welfare Order was required to provide an Article 5 compliant procedure to protect SRK from arbitrary detention. He emphasised that this was based on the premise that  the State knows or ought to know the situation on the ground particularly as the Court had previously awarded SRK damages, appointed a Deputy to manage SRK’s compensation award and had made decisions in SRK’s best interests. Charles, J stated that this gave the Courts knowledge and consequently the State knowledge. Accordingly, a deprivation of liberty under Article 5 existed and had to be authorised by the Court.

Practice Points

1. This ruling accords with previous cases by placing the onus directly on the State to assume responsibility.
2. The knowledge that the Courts acquire in any compensation award case or deputyship application triggers responsibility, albeit indirectly, to the State for a deprivation of liberty as the State is aware of the situation on the ground.
3. This aligns with the position of residents who are self-funders who are detained in care homes whereby the State becomes indirectly responsible when the care home requests a DoL’s authorisation.
4. It is worth noting that Charles J did stress in his judgment that it was with reluctance that he had come to his conclusions as firstly it would put more of a burden on professional Deputies and Attorneys and family members as there may be little or no state involvement in their particular cases; and, secondly, dealing with a Re X procedure could be onerous.