A local authority has successfully resisted a Court of Appeal challenge brought by the Justice Secretary in a state imputability case. Nageena Khalique QC explains the ruling.
In Secretary of State for Justice v Staffordshire County Council & Anor  EWCA Civ 1317 (22 December 2016) Sir Terence Etherton MR, delivered a reasoned judgment - with which Beatson LJ and Elias LJ agreed - dismissing an appeal brought by the Secretary of State for Justice.
Readers may recall the recent decision of Charles J in SRK  EWCOP 27 where the local authority sought authorisation from the court, as it had been put “on notice” of a potential Article 5 deprivation of SRK’s liberty. The arrangements for SRK’s care were entirely privately funded from a substantial sum in PI damages with no state involvement.
The hearing before the Vice President
Charles J concluded that a welfare order (under s16 of the Mental Capacity Act 2005 authorising the deprivation of liberty pursuant to s.4A (3) MCA) was needed. The critical issue was that a positive obligation was triggered by the State’s knowledge of the concrete situation “on the ground” by the court awarding damages, the Court of Protection appointing a deputy and/or the trustees to whom damages are paid.
The SSJ appealed that decision on two grounds:
Firstly it was argued that the existing framework of civil and criminal law was sufficient to discharge the State’s obligations to prevent a deprivation of liberty in private circumstances. Furthermore the SSJ contended that local authorities and public bodies had safeguarding duties which would protect vulnerable individuals and nothing more was required. The SSJ argued that Charles J erred in law to hold in such private arrangements the State’s positive obligation under Article 5(1) ECHR could only be discharged by making a welfare order.
Secondly the SSJ argued that a “private deprivation of liberty” could not be attributed to the State where all were in agreement that the arrangements were in SRK’s best interests. As there were no concerns of abuse or failures in the care provided, nothing further was required by the State.
The Court of Appeal
The Court of Appeal comprised of Sir Terence Etherton MR, Beatson LJ and Elias LJ handed down a reasoned judgment firmly dismissing the SSJ’s arguments on appeal. The key issue was whether SRK’s “private” deprivation of liberty was imputable to the State.
The Master of Rolls held that the ECtHR in Storck did not provide an answer as to what reasonable steps might be required in circumstances such as those of SRK and did not mandate that a court order would inevitably be required where a regime fell short for the State to meet its positive obligations under Article 5(1). The court did not agree with the SSJ’s submissions that the existing regime including the Care Quality Commission, the Public Guardian, doctors and other health professionals, safeguarding obligations of local authorities were sufficient but agreed with the council's submissions that this would not suffice in discharging the State’s Article 5 obligations and that Charles J was right to dismiss that argument at first instance:
“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 ECtHR 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 at  that Charles J was correct to conclude 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.
The decision of the Court of Appeal confirms that “private” arrangements made by any court appointed deputy trigger the State’s positive obligations and that “reasonable steps” that are required in such circumstances, include obtaining court authorisation for any Article 5 deprivation of liberty i.e. a welfare order under s16 MCA 2005 from the Court of Protection. However it remains to be seen whether the SSJ will pay heed to the observations of the Master of the Rolls at  that it would be for the Government to fill the gap (as it had done in the case of the Bournewood gap):
83. Finally, 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.
What will this mean for COP / PI practitioners?
- In existing arrangements a deputy should raise the issue of the deprivation of liberty with the relevant local authority
- The local authority could then “put in place arrangements that meant that P was not objectively deprived of his liberty or that would make the care arrangements less restrictive…”
- Where a deputy and a local authority have properly examined the issues, and where their conclusion is supported by the family, then a streamlined, paper procedure (Re X) for the making of the initial welfare order and paper reviews is likely to be appropriate
- Where the deprivation of liberty remains, the deputy should then ensure that the situation is authorised by the making of a welfare order, and that is kept under review by the relevant decision makers on the ground
- There is an obligation on the court that awarded the damages, and the Court of Protection when appointing a deputy, to take steps to ensure that the relevant local authority knows of the regime
- The need for a welfare order should be factored into the calculation of damages awards in the future