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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/1317.html
Cite as: [2017] Fam 278, [2017] 2 WLR 1131, [2017] COPLR 120, [2016] EWCA Civ 1317, [2017] WLR(D) 12

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		Neutral Citation Number: [2016] EWCA Civ 1317
		Case No: B4/2016/2438

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
MR JUSTICE CHARLES
11381894

Royal Courts of Justice
Strand, London, WC2A 2LL

22/12/2016

B e f o r e :

SIR TERENCE ETHERTON, MR
LORD JUSTICE ELIAS
and
LORD JUSTICE BEATSON
____________________

Between:

	SECRETARY OF STATE FOR JUSTICE	Appellant
	- and -
	(1) STAFFORDSHIRE COUNTY COUNCIL (2) SRK (by his litigation friend, SK) (3) RK (4) IRWIN MITCHELL TRUST CORPORATION	Respondents

____________________

Rachel Kamm (instructed by Government Legal Department) for the Appellant
Nageena Khalique QC (instructed by Staffordshire Legal Services) for the First Respondent
Sam Karim (instructed by Stephensons Solicitors LLP) for the Second Respondent
Parishil Patel (instructed by Irwin Mitchell Solicitors) for the Fourth Respondent

Hearing date: 30/11/2016
____________________

HTML VERSION OF JUDGMENT APPROVED BY THE COURT
____________________

Sir Terence Etherton MR:

The issue in this case is whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights ("the Convention"), it is necessary for a welfare order to be made by the Court of Protection ("the CoP") pursuant to the Mental Capacity Act 2005 ("the MCA") in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention ("Article 5(1)").

The appeal is by the Secretary of State for Justice ("the SoS") from a welfare order made on 24 May 2016 pursuant to the MCA ss. 4 and 16 by Charles J as the Vice President of the CoP ("the May 2016 order"). By the May 2016 order the Judge (1) declared that (a) the second respondent, SRK, lacked capacity to conduct the proceedings and to make decisions relating to where he should live and what care and treatment he needed, and (b) the restrictions in place pursuant to his care plan constituted a deprivation of SRK's liberty for the purposes of the MCA; and (2) (among other things) ordered that it was in SRK's best interests to reside at Greenglade, his home ("the property"), and to receive care and support pursuant to care plans dated 1 July and 5 July 2015; and, to the extent that those arrangements and the restrictions in place pursuant to the care plans were a deprivation of SRK's liberty, such deprivation of his liberty was thereby authorised as being in his best interests.

The May 2016 order also provided for the fourth respondent, Irwin Mitchell Trust Corporation ("IMTC"), to apply to the Court for a review of the order in various specified circumstances.

The background

The facts are set out in detail in the Judge's judgment. The following brief summary is sufficient for the purpose of understanding the context for this case and this appeal.

SRK was a victim of a road traffic accident in 2005. He suffered multiple injuries, including brain injury. He suffers from a number of other conditions, including epilepsy and regular seizures. He is wheelchair-bound and requires assistance with all aspects of personal care and daily living. He requires 24 hour care and assistance seven days a week. He has very limited communication but those who know him are able to interpret some of his wishes and feelings through his body language.

SRK received a substantial award of damages (in compromise of civil proceedings), which provided the funds for his accommodation in the property and its adaptation to meet his needs and for his 24-hour care package for the rest of his life. He is now in his late thirties.

SRK's damages award is managed by IMTC, which was appointed by order of the CoP dated 9 June 2011, pursuant to the MCA s.16, to be SRK's deputy to make decisions on his behalf in relation to his property and affairs (following the discharge of an earlier deputy).

SRK's accommodation and care package was arranged and is provided without any input from the first respondent, Staffordshire County Council ("the Council") or any other public authority. The care is supervised by a private specialist brain injury case manager and is provided by private carers.

The Council had no knowledge of SRK, and was unaware of his private care arrangements, until it received a letter from IMTC dated 19 January 2015. That letter informed the Council that the arrangements for SRK's accommodation and care at the property may amount to a deprivation of his liberty.

The Council then carried out an assessment and concluded that SRK was being deprived of his liberty for the purposes of the MCA and Article 5(1).

The legislative framework

There are set out in the Annex to this judgment relevant provisions of the MCA, the Human Rights Act 1998 ("the HRA 1998) and the Convention. It is convenient to mention at this point only the following.

Article 1 of the Convention provides that States shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention (which includes Article 5).

Article 5 provides that

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

(e) the lawful detention … of persons of unsound mind …"

Section 6(1) of the HRA 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Section 4A(1) of the MCA provides that the MCA does not authorise any person to deprive another person of their liberty, but that is subject to (among other things) the provisions in section 4A(3) and (4) of the MCA that a person may be deprived of their liberty in order to give effect to a decision of the CoP in relation to a matter concerning that other person's welfare.

Section 64(5) of the MCA provides that references to deprivation of a person's liberty have the same meaning as in Article 5(1).

It is convenient to mention here that amendments were made to the MCA by the Mental Health Act 2007 ("the MHA 2007") that were prompted by the decision of the European Court of Human Rights ("the ECrtHR") in HL v United Kingdom (2005) 40 EHRR 32. The ECrtHR held in that case that there were insufficient procedural safeguards to prevent the arbitrary deprivation of liberty of the applicant in that case, who was autistic and was unable to consent to medical treatment, and who complained that, while an "informal patient", he had been unlawfully detained in Bournewood Hospital in breach of Article 5. The following paragraphs of the judgment are relevant.

"119 … the Court considers that the further element of lawfulness, the aim of avoiding arbitrariness, has not been satisfied.

120. In this latter respect, the Court finds striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted. The contrast between this dearth of regulation and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 [Mental Health] Act … is, in the Court's view, significant.

In particular and most obviously, the Court notes the lack of any formalised admission procedures which indicate who can propose admission, for what reasons and on the basis of what kind of medical and other assessments and conclusions. There is no requirement to fix the exact purpose of admission (for example, for assessment or for treatment) and, consistently, no limits in terms of time, treatment or care attach to that admission. Nor is there any specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention. The nomination of a representative of a patient who could make certain objections and applications on his or her behalf is a procedural protection accorded to those committed involuntarily under the 1983 Act and which would be of equal importance for patients who are legally incapacitated and have, as in the present case, extremely limited communication abilities.

121. As a result of the lack of procedural regulation and limits, the Court observes that the hospital's health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit: as Lord Steyn remarked, this left "effective and unqualified control" in their hands. While the Court does not question the good faith of those professionals or that they acted in what they considered to be the applicant's best interests, the very purpose of procedural safeguards is to protect individuals against any "misjudgments and professional lapses" ...."

The inadequacy of the procedural safeguards identified in that decision became known as "the Bournewood gap". In order to remedy that gap for mentally incapacitated people, who were being treated in hospitals, care homes and elsewhere without being detained under the Mental Health Act 1983, amendments were made, as I have said, to the MCA by the MHA 2007. Those amendments included the introduction of deprivation of liberty safeguards ("DOLS") in Schedule A1 to the MCA by a new section 4A(5) of the MCA. Those safeguards only apply to persons in hospitals and care homes falling within the meaning of the Care Standards Act 2000: MCA Sched A1 para. 178. They do not, therefore, extend to someone, in the position of SRK, being treated in their own privately owned property.

The proceedings

The Council commenced these proceedings on 20 August 2015. It claimed, among other things, a declaration that SRK lacked capacity to make decisions regarding his care and residence, and an order that it was in the best interests of SRK to be deprived of his liberty.

By an order of Charles J dated 7 October 2015 ("the October 2015 order") it was declared, pursuant to the MCA s.48, that SRK lacked capacity to litigate the proceedings and to make decisions about where he should live and his care package, and that it was lawful and in SRK's best interests to live at the property and receive a package of care in accordance with his assessed needs. The October 2015 order also contained an interim order that SRK was to receive care and reside at the property, and that, to the extent that the restrictions in place pursuant to the care plan were a deprivation of SRK's liberty, such deprivation of SRK's liberty was thereby authorised.

The October 2015 order joined SRK as the first respondent, appointed his sister, SK, to be his litigation friend, joined IMTC as third respondent and joined the SoS as the fourth respondent.

The SoS was joined as a respondent so that she could make submissions as to (in the words of the order):

"the circumstances and the extent to which the State is imputable in any deprivation of liberty arising out of private care arrangements in light of the potentially far reaching consequences for state bodies and the court".

If the deprivation of liberty of an individual in such circumstances is attributable to the State, then the Council's application to the CoP was necessary under the MCA s.4A(3) to authorise SRK's deprivation of liberty. If it is not attributable to the State, then the Council's application was not necessary.

The hearing of that issue took place before Charles J on 10 March 2016. At that hearing, the SoS's stance was that the alleged deprivation of liberty (arising out of the private care arrangements in SRK's particular circumstances) was not imputable to the State and therefore it was not a deprivation of liberty for the purposes of the MCA.

It was common ground at the hearing that (1) SRK lacked capacity to make decisions on the regime of care, treatment and support that he should receive; (2) SRK's care regime was in his best interests (within the MCA ss.1(5)) and the least restrictive available option to best promote his best interests (as required by the MCA s.1(6)); (3) the property was SRK's private residential property; (4) the accommodation and package of care were arranged without any involvement by the Council; (5) the package of care was managed by a private specialist brain injury case manager; (6) the care was funded using compensation money and managed by IMTC; (7) the carers were provided to SRK privately; and (8) the arrangements confined SRK to the property for a not negligible length of time, and he was there subject to continuous supervision and control and was not free to leave.

The Judge's judgment

Charles J handed down a detailed and substantial judgment on 24 May 2016.

The Judge said (at [3]) that the issue was whether the situation on the ground was a deprivation of liberty that had to be authorised by the CoP by making a welfare order. In that connection, the Judge referred (at [5]) to the three components of a deprivation of liberty (for the purposes of the MCA and Article 5) described by Baroness Hale in Surrey County Council v P and others; Cheshire West and Chester Council v P and another [2014] UKSC 19, [2014] AC 896) ("Cheshire West") as follows at paragraph [37]:

"The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck 43 EHRR 96, paras 74 and 89, confirmed in Stanev 55 ECHR 696, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state."

It was common ground before the Judge that the first and second components (objective and subjective deprivation of liberty) were satisfied. All the parties, other than the SoS, contended that the third component was satisfied. SRK's litigation friend advanced an alternative argument that the definition of deprivation of liberty in the MCA did not require the third component. All the parties, other than the SoS, contended, accordingly, that a welfare order based on SRK's care regime had to be made by the CoP, which would authorise the deprivation of liberty that the care regime created on the ground.

The Judge helpfully summarised his overall conclusion early in his judgment as follows:

"9. I have concluded that a welfare order is needed. I have reached this conclusion by a route that differs from the arguments advanced in favour of it but I agree that the third component is satisfied. I have set out my analysis under headings with my conclusions at paragraphs 128 to 155.

10. On my analysis:

(1) The critical issue is whether, absent the making of a welfare order by the COP in cases within the class represented by SRK's case, the amendments to the MCA directed to filling the "Bournewood gap" have achieved that purpose in those cases.

(2) In my view, it would not do so.

(3) In my view, a welfare order needs to be made in such cases to provide a procedure that protects the relevant person from arbitrary detention and so avoids a violation of the State's positive obligations under and the spirit of Article 5.

(4) That conclusion is based on the premise that the State knows or ought to know of the situation on the ground.

(5) That knowledge exists in SRK's case and on my approach it would exist in all cases in the class it represents. This is because the court that awards the damages, the COP when appointing a property and affairs deputy and the deputy or the trustees or attorney or other person to whom the damages are paid should take steps to ensure (a) that the relevant local authority with duties to safeguard adults knows of the regime of care, and (b) that if, as here, the least restrictive available care regime to best promote P's best interests creates a situation on the ground that satisfies the objective and subjective components of a deprivation of liberty (and so a deprivation of liberty within Article 5) a welfare order based on that regime of care is made by the COP.

(6) This conclusion should be factored into the calculation of damages awards in the future".

The Judge described as follows the approach to be applied to determine whether there is an Article 5 deprivation of liberty:

"29. If and when a (private) deprivation of liberty within Article 5 exists on the ground it then has to be considered whether it is the responsibility of the State, and so an Article 5 Deprivation of Liberty. That involves a staged approach.

30. Firstly, it should be considered whether the direct involvement of the State is sufficient to have that result. If it is, the State is responsible for it as the body or one of the bodies that has put it in place and is implementing it.

31. Secondly, if the State is not directly responsible for the deprivation of liberty within Article 5, it has to be considered whether the domestic regime of law, supervision and regulation satisfies the obligations imposed on the State by Article 5. If it does not, that could of itself make the State responsible for that deprivation of liberty but, on a fact sensitive and backwards looking approach, what the State (or others) did in a given case could avoid that result or create a result that the individual could not establish a breach of his Article 5 right.

32. Thirdly, if the State is not directly responsible and the domestic regime of law, supervision and regulation satisfies, or if properly implemented would satisfy, the positive obligations imposed on a State by Article 5 to create an appropriate regime of law, supervision and regulation it then has to be considered whether the interpretation and application of that regime in the circumstances of the case has satisfied the positive obligations imposed by and further or alternatively the spirit and so the underlying purposes of Article 5."

The Judge said (at [40] to [41]) that, in the context of examining the provisions of the MCA to see whether they satisfied the positive obligation imposed on the State by "Article 5 and its spirit", the "Bournewood gap" and so the conclusions of the ECrtHR in HL were relevant. He referred to the conclusions of the ECrtHR in that case.

The Judge said (at [71]) that it was not easy to see what value would be added to the protection of SRK by the making of a welfare order and its review by the CoP since the CoP is reliant on information provided by others and SRK had active and caring support from members of his family, his care team and his property and affairs deputy; and further, the Council was aware of his case and there was no real doubt that if any of the persons who are actively involved in his life thought that the Council, and further or alternatively the CoP, should become involved they would initiate this. He observed (at [72]), however, that it was not always the case that someone in the class of case represented by SRK would have the support of family or friends who take an active role and interest in their care and life.

The Judge said (at [75]) that it was not easy to give an accurate estimate of the number of cases represented by the present one, in which the accommodation and all of the care are provided privately. He concluded (at [77]) that "the class of case represented by SRK is significant but would not form a high percentage of the cases in which a welfare order to authorise a deprivation of liberty should be sought from the CoP."

The Judge held, contrary to the argument of the parties other than the SoS, that neither the involvement of the court awarding the damages, nor the CoP's appointment of, and directions to, IMTC as deputy, nor the responsibilities of the deputy, the involvement of the Council and the steps taken by it, nor the registration of SRK's placement with the Care Quality Commission ("the CQC"), meant that the State was responsible for SRK's deprivation of liberty. His view (at [91] and [131]), supported by references to Storck v Germany (2006) 43 EHRR 6 and Re A and Re C [2010] EWHC 978 (Fam), was that direct involvement of the State must be based on the direct participation of the State in the care, support or related events that create and implement the deprivation of liberty within Article 5(1).

The Judge, therefore, formulated (in [122]) the issue as:

"whether the domestic system of law, supervision and regulation of a (private) deprivation of liberty and its application in a given case satisfies the spirit and underlying purposes of Article 5 and so provides practical and effective substantive and procedural safeguards against the arbitrary deprivation of liberty of the relevant person."

His view (at [140] and [141]) was that the following important elements would be added by an application to, and the making of a welfare order by, the CoP: (1) an effective replication of the assessments, and so the stepping stones to a decision, set out in the DOLS because the CoP would need and require such evidence to enable it to make a properly informed decision; (2) the introduction of an independent decision maker who would have to be satisfied that the incapacitated person's "voice" was properly before the court, and (3) the introduction of a system of review by that independent decision maker which, on the existing approach, would take place at defined intervals not exceeding one year.

Having observed that, by virtue of the MCA s.4A, the provisions of the MCA s.5 do not authorise the deprivation of liberty, and that the DOLS only apply to persons in hospitals and care homes, the Judge said (at [142]) that in Cheshire West at paragraph [57] Baroness Hale had indicated that the Supreme Court was erring on the side of caution.

The Judge said (at [143]) that, returning to HL, the central issue in the present case was whether, absent the making of a welfare order by the CoP, the lack of a defined decision making procedure for the initial decision and its review, under which defined assessments have to be carried out, means that there are insufficient procedural safeguards for anyone in the position of SRK

He concluded (at [146]) that, absent the making of a welfare order by the CoP, there are insufficient procedural safeguards to satisfy the positive obligations of the State under Article 5(1).

He said (at [147]) that he reached that conclusion with real reluctance because it seemed to him that in the present 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.

The Judge referred again in paragraph [148] to "the cautious approach taken in Cheshire West", and said that the requirement of a welfare order is supported by the following considerations:

"i) 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,

ii)deputies and local authorities will not act in the same way in all cases,

iii)not all [incapacitated persons] will have supporting family members or friends,

iv)a different regime dependent on the identity of those involved would be impracticable or arbitrary, and

v)when, as here, 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."

Finally, the Judge rejected the argument of counsel for SRK that the definition of the expression "deprivation of liberty" in the MCA ss. 64(5) and (6) is limited to the objective and subjective components. He said (at [154]) that, in his view, s. 64(6) does not seek to qualify s. 64(5) or to make a provision in substitution for the State responsibility component of an Article 5 deprivation of liberty.

The appeal

The formal written grounds of appeal are that the ECrtHR authorities do not support the Judge's conclusion that the State has breached any positive obligations on the facts of this case; he misdirected himself in relying on the observations of Baroness Hale at paragraph [57] of Cheshire West and on observations in HL; it was not open to him to find that the situation was imputable to the State in the circumstances; as a matter of law the Court could only have concluded that there was no legal obligation on SRK's deputy to notify the Council of the situation and, further, there was no obligation on the Council by virtue of Article 5 or the MCA to take any particular steps to investigate or to bring the matter to the attention of the CoP.

As presented by the SoS's counsel, Ms Rachel Kamm, the substance of appeal falls broadly into two parts. She submitted, firstly, that the combination of the existing civil and criminal law and the obligations of public bodies to safeguard vulnerable individuals are sufficient to satisfy the positive obligation of the State under Article 5 where the day to day care of a person, who is objectively deprived of liberty but lacks capacity for the purposes of the MCA to consent to that loss of liberty, is being provided entirely privately rather than by the State. In particular, the Judge was wrong to conclude that, in such a situation, the State's positive obligation under Article 5(1) can only be discharged if a welfare order is made by the CoP under the MCA s. 16 authorising the deprivation of liberty pursuant to the MCA s. 4A(3).

She submitted, secondly, that responsibility for a "private" deprivation of liberty cannot be attributed to the State where, as in the present case, there was no reason for the local authority or any other public body to have any suspicions about abuse. So, in the present case, it is common ground that there has never been any suggestion that there was some deficiency in the care provided to SRK, or that something has been done that was not in his best interests or that the deprivation of his liberty was greater than it could and should have been.

Ms Kamm elaborated on those arguments in considerable detail in her oral submission. It is convenient to consider her detailed submissions in the discussion below.

Discussion

The MCA imports the ECrtHR definition of deprivation of liberty since it provides in section 64(5) that the expression has the same meaning as in Article 5(1): Cheshire West at [19].

It is common ground that the three components of deprivation of liberty within Article 5(1) are: (1) an objective component of confinement in a particular restricted place for a not negligible length of time; (2) a subjective component of lack of valid consent; and (3) the attribution of responsibility to the State: Cheshire West at [37]; Storck at [74] and [89]. As was common ground before the Judge and on this appeal, the first two components are satisfied in the case of SRK and only the third component is in issue. Storck is the leading authority on the third component.

The facts in Storck were as follows. From 29 July 1977 to 5 April 1979, the applicant (then 18 years old) was placed in a locked ward of a private psychiatric institution in Bremen, at the demand of her father, who believed her to be suffering from a psychosis. Under the relevant domestic law that clinic was not entitled, in the absence of a court order, to detain people who were mentally ill. On 4 March 1979 the police brought the applicant back to the clinic by force after she had attempted to escape.

The Applicant brought an action for damages against the clinic in the Bremen Regional Court. She claimed that her detention from 29 July 1977 to 5 April 1979 had been illegal under German law.

The ECtHR concluded that, as the applicant was objectively deprived of her liberty at the clinic and she had not validly consented to that detention, she had been deprived of her liberty within the meaning of Article 5(1).

The ECrtRECourt ECrtHR described the following legal framework for considering the responsibility of the respondent State for that situation on the ground.

"89. The Court recalls that the question whether a deprivation of liberty is imputable to the State relates to the interpretation and application of Article 5(1) of the Convention … It agrees with the parties that in the present case, there are three aspects which could engage Germany's responsibility under the Convention for the applicant's detention in the private clinic in Bremen. Firstly, the deprivation of liberty could be imputable to the State due to the direct involvement of public authorities in the applicant's detention. Secondly, the State could be found to have violated Article 5(1) in that its courts, in the compensation proceedings brought by the applicant, failed to interpret the provisions of civil law relating to her claim in the spirit of Article 5. Thirdly, the State could have violated its positive obligations to protect the applicant against interferences with her liberty carried out by private persons. "

The ECrtHR found that the applicant's deprivation of liberty in Storck was imputable to the State because of the direct involvement of the police in forcibly bringing her back to the clinic from which she had fled.

In the present case, the Judge decided in favour of the SoS that there had been no direct involvement by the State in SRK's deprivation of liberty. The second issue in paragraph [89] of Storck also does not arise. The only live question on this appeal is as to the third issue in paragraph [89] of Storck, namely whether SRK's deprivation of liberty is imputable to the State because of its failure to discharge its positive obligation to protect him from deprivation of liberty contrary to Article 5(1).

At paragraph [100] of Storck the ECrtHR turned to consideration of whether, quite apart from the State's direct involvement in the applicant's deprivation of liberty, the applicant's detention was also imputable to the State on the third ground in paragraph [89], that is to say because Germany had "violated a positive obligation to protect the applicant against interferences with her liberty as carried out by private persons". The Court described the applicable principles on that issue in paragraphs [101] and [102] as follows:

"101. The Court has consistently held that the responsibility of a State is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of non-observance by that State of its obligation under Art.1 to secure those rights and freedoms in its domestic law to everyone within its jurisdiction. Consequently, the Court has expressly found that Art.2, Art.3 and Art.8 of the Convention enjoin the State not only to refrain from an active infringement by its representatives of the rights in question, but also to take appropriate steps to provide protection against an interference with those rights either by State agents or private parties.

102. Having regard to this, the Court considers that Art.5(1), first sentence, of the Convention must equally be considered as laying down a positive obligation on the State to protect the liberty of its citizens. Any conclusion to the effect that this was not the case would not only be inconsistent with the Court's case law, notably under Arts 2, 3 and 8 of the Convention. It would, moreover, leave a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is, therefore, obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge."

The ECrtHR concluded that Germany had violated its positive obligation under Article 5(1). It considered that the control exercised by the State in connection with the issuing of a licence for the conduct of a private clinic was not sufficient to ensure competent and regular supervisory control against a deprivation of liberty. That was because, without a court order, there was no positive obligation on the State to exercise supervisory control over the lawfulness of the detention and the State did not in fact exercise any such control for some 20 months.

Having regard to the importance of the right to liberty and the vulnerable position of individuals like the applicant in Storck, the ECrtHR rejected (at [105]) the suggestion that it was a sufficient discharge of Germany's positive obligation under Article 5(1) that German criminal law provided retrospectively for up to 10 years' imprisonment for the offence of deprivation of liberty and the German civil law provided for compensation in tort for damage caused by an unlawful detention.

The principles in Storck as to the positive obligation of the State under Article 5(1) were summarised as follows by the ECrtHR in Stanev v Bulgaria [2012] 55 EHRR 696:

120. In addition, the Court has had occasion to observe that the first sentence of Article 5(1) must be construed as laying down a positive obligation on the State to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge (see Storck, cited above, § 102). Thus, having regard to the particular circumstances of the cases before it, the Court has held that the national authorities' responsibility was engaged as a result of detention in a psychiatric hospital at the request of the applicant's guardian (see Shtukaturov v Russia (2012) 54 EHRR 27), and detention in a private clinic (see Storck, cited above).

Mr Parishil Patel, counsel for IMTC, rightly emphasised that the purpose of Article 5 is to protect individuals from arbitrariness, that is to say arbitrary deprivations of liberty: HL at [124], Stanev at [120].

There was no issue before Charles J and no issue has been taken on this appeal as to any absence of knowledge on the part of the State. As I have said, it was the Judge's view (see [134]) that such knowledge on the part of the State exists in a case like the present because (1) the court awarding damages, (2) the CoP when appointing a deputy to hold and manage them, and (3) the deputy, trustees or an attorney to whom a damages award is paid, and who must make decisions on its application in the incapacitated person's best interests, should all be aware that the regime of care and treatment of persons in an equivalent position to SRK creates a deprivation of liberty within Article 5(1).

Ms Kamm submitted that the Judge had wrongly approached the matter on the footing (see [114] of the judgment) that the State, in a case such as the present, has an absolute obligation "to provide a procedure prescribed by law that gives practical and effective substantive and procedural safeguards against the arbitrary deprivation of liberty of the relevant person". She submitted that wrongly conflates the obligations of the State when it is itself caring for the incapacitated person with the State's minimum requirement to take "reasonable steps" to prevent a deprivation of liberty of which the authorities have or ought to have knowledge, in accordance with paragraph [102] of the ECrtHR's judgment in Storck. The SoS's skeleton argument criticised the Judge's approach as an unwarranted "gold standard" approach.

I do not accept that the Judge approached the matter incorrectly. Ms Kamm is entirely correct that the State's positive obligation under Article 5(1) is to take reasonable steps to prevent arbitrary deprivation of liberty. The Judge adequately expressed that test in his own language in paragraph [145] in the "Discussion and Conclusions" section of his judgment as whether, absent an application to the CoP for a welfare order, there existed "a sufficient decision making process and independent check to guard against arbitrary detention and so to satisfy the positive obligations by Article 5 and its spirit."

Ms Kamm submitted that adequate safeguards for the protection of someone in SRK's position are in place. As the Judge himself recognised (at [113]), 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. Storck does not identify what has to be in place to meet the minimum requirement of Article 5(1).

It is true, as Ms Kamm pointed out, 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). The ECrtHR observed (at [107]) that, after the end of the applicant's detention in the private clinic, German legislation had introduced further safeguards for individuals detained in psychiatric institutions; in particular, visiting commissions were created to inspect psychiatric institutions, to oversee whether the rights of patients were respected and to give patients the opportunity to raise complaints. The ECrtHR said that those mechanisms "came too late for the applicant" and did not express any view about whether they would have been sufficient to discharge the State's positive obligation under Article 5(1).

The SoS's case is 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.

In that connection, the SoS relies particularly on the functions of the Care Quality Commission ("the CQC"), 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 SoS's skeleton argument) "the general framework of the criminal justice system and civil law".

The Judge was both entitled, and right, to reject that argument.

Under the Health and Social Care Act 2008 ("the 2008 Act") the CQC has the principal objective of protecting and promoting the health, safety and welfare of people who use health and social care services. It regulates the providers of private care. The 2008 Act is supplemented by the Health and Social Care 2008 (Regulated Activities) Regulations 2014, which provide that an individual or partnership must not carry on a regulated activity (which includes personal care) unless fit to do so (as described in the 2008 Act) (regs. 4 and 6), that directors of corporate service providers must be fit and proper persons (reg 5),that the care and treatment of service users must be of the nature and standard prescribed (reg 9) and accord the service users dignity and respect (reg. 10), be given with the consent of the relevant person or in accordance with the MCA (reg 11) and be delivered in a safe way (reg 12). Further, the Care Quality Commission (Review and Performance Assessments) Regulations 2014 provide for the CQC to carry out reviews and performance assessments.

The CQC does not, however, go into private homes to check the care being given by the individual carers. Furthermore, as Mr Patel observed, those regulations governing the functions of the CQC are not directed at the arbitrariness of detention. They concern the conditions of detention and supervision of detention whereas Article 5(1) is addressing the fact and arbitrariness of the detention itself.

Ms Kamm drew attention to the fact that the CoP has power under the MCA s. 49 to call for reports by the Public Guardian, a local authority or an NHS body about a person who is the subject of proceedings in the CoP, and to the functions of the Public Guardian under the MCA s. 58. Those functions include supervising deputies appointed by the court, directing a visit by a CoP visitor, and reporting to the court on such matters relating to the proceedings under the MCA as the court requires. Those provisions only apply, however, once an individual is the subject of CoP proceedings.

So far as concerns the responsibilities of doctors, no doubt they would act if they had grounds for concern. Paragraph 27 of the General Medical Council's Good Medical Practice requires that doctors offer help if they consider that a vulnerable adult's rights might have been abused or denied. The responsibilities arise, therefore, if and when knowledge is acquired that abuse has already occurred.

Under the Care Act 2014 local authorities have an adult safeguarding role. The Judge acknowledged its importance (in [138]). They have a duty to promote an individual's wellbeing (s.1), including protection from physical and mental abuse. Each local authority has an obligation to make an assessment where it appears that an adult in its area may have needs for care and support (s.9), an obligation to make enquiries to decide what action should be taken where the local authority has reasonable cause to suspect that an adult in its area has needs for care and support and is experiencing, or is at risk of, abuse or neglect (s.42), and an obligation to arrange for an independent person to represent the individual when it is carrying out an assessment or an enquiry or review under the Act (ss.67 and 68). The obligation of the local authority is, therefore, to investigate, support and sometimes to make an application to the court (or to consider doing those things) in an appropriate case.

Ms Kamm submitted that it was hard to discern from the Judge's judgment why the current regime of law, supervision and regulation was not sufficient, particularly in the light of what the Judge said (at [147]) about a further independent check by the CoP in the present case and many other such cases not adding anything other than unnecessary expense and diversion of private and public resources which would be better focused elsewhere. I do not agree.

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.

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).

The approach and analysis of the Judge seem clear enough. He identified in paragraphs [140] and [144] of his judgment the regime that would apply, absent an application for a CoP, that is to say:

"140 …

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."

"144 …

i) the decisions makers on the ground will apply the same test as the COP and will take into account the stepping stones that are the subject of the DOLS requirements and assessments, and

ii) the relevant local authority and other public authorities with adult safeguarding duties will have considered what if any steps they should take"

He identified in paragraph [141] the deficiencies of such a regime in comparison with one which requires an application to the CoP for a welfare order, namely that such an application:

"i) would necessitate an effective replication of the assessments, and so the stepping stones to a decision, set out in the DOLS because the COP would need and require such evidence to enable it to make a properly informed decision,

ii) would introduce an independent decision maker who would have to be satisfied that P's "voice" is properly before the court, and

iii) would introduce a system of review by that independent decision maker which on the existing approach would take place at defined intervals not exceeding one year."

The Judge was fully entitled, and right, to conclude in the circumstances in paragraphs [143] and [146] 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 fact that, as the Judge acknowledged in paragraph [147], 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 [148], 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.

I have found it difficult to understand the SoS's criticism of the Judge's reference to paragraph [57] of Cheshire West. That paragraph is as follows:

"57 Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the deprivation of liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us."

It is perfectly true, as Ms Kamm submitted, that Baroness Hale's statement was for the purpose of establishing what constitutes a deprivation of liberty in respect of the appellants in that case. What was being emphasised by Baroness Hale, however, was the need for the protection of people like the appellants in that case on account of their "extreme vulnerability". She said that was why they need a periodic independent check on whether the arrangements made for them are in their best interests. People in the position of SRK are equally extremely vulnerable, and the Judge was perfectly entitled, and correct, to take that into account in deciding whether the existing law and treatment and care arrangements for someone in SRK's position are an adequate discharge by the State (when it has the requisite knowledge) of its obligation to take reasonable steps to prevent arbitrary deprivation of liberty contrary to Article 5(1).

I also find it difficult to understand the SoS's criticism of the Judge's references to HL and the measures that were introduced following that case, by way of amendment of the MCA. That case was relevant to describing the background to the current legal arrangements for the protection of incapacitated persons. It was against the background of those arrangements that the question fell to be asked whether the State had satisfied the Storck test in the present case, namely whether the State had taken reasonable steps to prevent the deprivation of liberty of SRK.

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.

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. 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.

Conclusion

For all those reasons, I would dismiss this appeal.

Lord Justice Elias:

I agree.

Lord Justice Beatson:

I also agree.

Annex

The MCA

1. The principles

(1) The following principles apply for the purposes of this Act.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action"

4. Best interests

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(6) He must consider, so far as is reasonably ascertainable—

(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b) the beliefs and values that would be likely to influence his decision if he had capacity, and

(c) the other factors that he would be likely to consider if he were able to do so.

(7) He must take into account, if it is practicable and appropriate to consult them, the views of –

(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b) anyone engaged in caring for the person or interested in his welfare,

(c) any donee of a lasting power of attorney granted by the person, and

(d) any deputy appointed for the person by the court,

This sectionnoteType=Explanatory Notes has no associated

4A. Restriction on deprivation of liberty

(1) This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.

(2) But that is subject to—

(a) the following provisions of this section, and

(b) section 4B.

(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.

(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).

Acts in connection with care or treatment5. Acts in connection with care or treatment

(1) This section has no associated Explanatory Notes

(1) If a person ("D") does an act in connection with the care or treatment of another person ("P"), the act is one to which this section applies if—

(a) (a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and

(b) when doing the act, D reasonably believes—

(i) that P lacks capacity in relation to the matter, and

(ii) that it will be in P's best interests for the act to be done.

(2) D does not incur any liability in relation to the act that he would not have incurred if P—

(a) had had capacity to consent in relation to the matter, and

(b) had consented to D's doing the act.

(3) Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.

Section 5 acts: limitations

6. Section 5 acts: limitations

(1) This section has no associated Explanatory Notes

(1) If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied.

(2) The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P.

(3) The second is that the act is a proportionate response to—

(a) the likelihood of P's suffering harm, and

(b) the seriousness of that harm.

(4) For the purposes of this section D restrains P if he—

(a) uses, or threatens to use, force to secure the doing of an act which P resists, or

(b) restricts P's liberty of movement, whether or not P resists.

16. Powers to make decisions and appoint deputies: general

This sectionnoteType=Explanatory Notes has no associated

(1) This section applies if a person ("P") lacks capacity in relation to a matter or matters concerning—

(a) P's personal welfare, or

(b) P's property and affairs.

(2) The court may—

(a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or

(b) appoint a person (a "deputy") to make decisions on P's behalf in relation to the matter or matters.

(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).

(7) An order of the court may be varied or discharged by a subsequent order.

Restrictions on deputies

This section has no associated Explanatory Notes

21A. Powers of court in relation to Schedule A1

(1) This section applies if either of the following has been given under Schedule A1 –

(a) a standard authorisation;

(b) an urgent authorisation.

(2) Where a standard authorisation has been given, the court may determine any question relating to any of the following matters –

(a) whether the relevant person meets one or more of the qualifying requirements;

(b) the period during which the standard authorisation is to be in force;

(c) the purpose for which the standard authorisation is given;

(d) the conditions subject to which the standard authorisation is given.

(3) If the court determines any question under subsection (2), the court may make an order –

(a) varying or terminating the standard authorisation, or

(b) directing the supervisory body to vary or terminate the standard authorisation.

(4) Where an urgent authorisation has been given,----------------

(6) Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.

(7) An order under subsection (6) may, in particular, exclude a person from liability

64. Interpretation

(5) In this Act, references to deprivation of a person's liberty have the same meaning as in Article 5(1) of the Human Rights Convention [defined as the Convention in the Human Rights Act 1998 in s. 64(1)].

(6) For the purposes of such references, it does not matter whether a person is deprived of his liberty by a public authority or not.

The Human Rights Act 1998

6 Acts of public authorities.

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

The Convention for the Protection of Human Rights and Fundamental Freedoms

Article 1

Obligation to respect human rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention

Article 5

Right to liberty and security

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

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

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

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

…

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. …"