England and Wales Court of Protection Decisions

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Cite as: [2016] WLR(D) 300, [2016] Med LR 398, [2016] COPLR 504, [2016] Fam 419, [2016] EWCOP 27, [2016] 3 WLR 867

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		Neutral Citation Number: [2016] EWCOP 27
		Case No: 11381894

COURT OF PROTECTION

Royal Courts of Justice
Strand, London, WC2A 2LL

24/05/2016

B e f o r e :

MR JUSTICE CHARLES
____________________

Between:

	STAFFORDSHIRE COUNTY COUNCIL	Applicant
	- and -
	SRK (by his litigation friend SK)
	IRWIN MITCHELL TRUST CORPORATION
	THE SECRETARY OF STATE FOR JUSTICE	Respondents

____________________

Nageena Khalique QC (instructed by Staffordshire CC) for the Applicant
Sam Karim in writing (instructed by Stephensons Solicitors LLP) for SRK
Parishil Patel (instructed by Irwin Mitchell) for the third Respondent
Rachel Kamm (instructed by the Government legal Department) for the fourth Respondent
Hearing date: 10 March 2016
____________________

HTML VERSION OF JUDGMENT
____________________

Charles J :

Introduction

This is a public document.

This case concerns an individual SRK who was severely injured in a road traffic accident. The effects of those injuries are that (a) he lacks capacity to make decisions on the regime of care, treatment and support that he should receive (SRK's care regime), and (b) applying the approach in Cheshire West (see Surrey County Council v P and others; Cheshire West and Chester Council v P and another [2014] UKSC 19, [2014] AC 896), SRK's care regime creates, on an objective assessment, a deprivation of liberty. SRK was awarded substantial damages that were paid to his property and affairs deputy (the third Respondent IMTC). He lives at a property that has been bought and adapted for him. His regime of care and support there is provided by private sector providers. The damages funded that purchase and adaptation and fund that regime of care.

The issue is whether this situation on the ground is a deprivation of liberty that has to be authorised by the Court of Protection (the COP) by it making a welfare order. The test that the COP would apply in making such an order is whether SRK's care regime is the least restrictive available option to best promote his best interests. The same test applies to the decision makers on the ground. It is common ground that at present SRK's care regime satisfies that test.

If the COP makes such a welfare order it will include provisions concerning when and how it is to be reviewed. It is likely that SRK's regime of care and support will always create an objective deprivation of liberty and that he will never have capacity to make decisions about it. However, from time to time issue are likely to arise on what changes should be made to that regime to ensure that it remains the least restrictive available option.

At paragraph 37 of her judgment in Cheshire West Baroness Hale said:

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. Components (b) and (c) are not in issue here, but component (a) is.

The parties, other than the Secretary of State who I joined, submit that all three components apply to SRK's care regime. SRK's litigation friend advances an alternative argument that the definition of a deprivation of liberty in the Mental Capacity Act 2005 (the MCA) does not require the third component. So they all take the position (using the identifiers in the MCA) that:

i) no-one on the ground (D) can lawfully impose SRK's care regime on him (P) by making decisions in his best interests to provide and so fund it, and so

ii) a welfare order based on SRK's care regime must be made by the COP, which will authorise the deprivation of liberty it creates on the ground.

The Secretary of State argues that the third component does not apply to SRK's care regime and so it can lawfully be put in place in reliance on the MCA without a welfare order being made.

So, subject to the argument on the MCA definition of a deprivation of liberty, the issue between the arguments advanced by the parties is whether the third component applies to SRK (and to others in the equivalent position).

Overall conclusion

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.

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 derivation 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 third component – attribution of responsibility to the State

The references to attribution of responsibility to the State and imputability to the State come from the approach taken by the ECtHR in Storck (cited by Baroness Hale and also reported at [2005] ECHR 406). It dealt with the first two components under the heading: "Had the applicant been deprived of her liberty?" It then dealt with the third component under the heading: "Responsibility of the respondent state". In doing so, it recalled that the question whether a deprivation of liberty is imputable to the State relates to the interpretation and application of Article 5(1) and that it raises issues that go to the merits of the case, which cannot be regarded merely as preliminary issues. To my mind, this is important because it shows that:

i) the third component is directed to whether the State is responsible for an existing situation on the ground that creates a deprivation of liberty within Article 5 because the objective and subjective components exist,

ii) there can be deprivations of liberty within Article 5 in respect of which the third component is not satisfied, and

iii) in addressing the issue whether the third component is satisfied the ECtHR looks backwards to what has happened and so what the State has and has not done.

The need for this responsibility of the State is based on Article 1 of the ECHR, which imposes an obligation on contracting States to secure to everyone within their jurisdiction the rights and freedoms defined in the ECHR and so creates rights against the State. This is reflected in the Human Rights Act 1998 which provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right.

The Article 5 rights of individuals have often been described as substantive and procedural rights that together protect individuals from arbitrary detention. To fulfil that purpose:

i) a deprivation of liberty of a person who lacks the relevant capacity to consent to it must be in accordance with a domestic procedure prescribed by law, and

ii) the detained individual must have practical and effective access to a court to enable him or others on his behalf to challenge his deprivation of liberty.

The State has positive and negative obligations under Article 5 which include the putting in place and the interpretation and performance of a procedure prescribed by law and so a regime of law, supervision and regulation to protect individuals from arbitrary detention.

As appears from the headings used in the judgment in Storck, the existence on the ground of a state of affairs in which the objective and subjective components of a deprivation of liberty exist is regularly and understandably referred to as a deprivation of liberty or a deprivation of liberty within Article 5. This state of affairs can be created and put into effect by organs of the State or by private individuals and bodies.

These references to the combination of the first two components create a terminology problem that is compounded by the point that the nature of the third component (attribution of responsibility) does not affect whether the concrete situation on the ground satisfies the first two components by being an objective deprivation of liberty to which a valid consent has not been given. This is because the third component is directed to whether the State has responsibility for that state of affairs and so whether the person who is so detained has a claim or a remedy against the State based on his Article 5 rights.

I shall refer to:

i) a concrete situation on the ground that satisfies the first two components as a deprivation of liberty, or a (private) deprivation of liberty, or a deprivation of liberty within Article 5, and

ii) a concrete situation on the ground that satisfies all three components as an Article 5 Deprivation of Liberty.

In Storck the ECtHR did not give an exhaustive test for determining when a State is responsible for a deprivation of liberty within Article 5 but made clear:

i) that a State is so responsible if it has had sufficient direct involvement in its imposition or its implementation, and so it cannot be described as private, and

ii) that such responsibility does not only arise from such a direct involvement but can also be founded on (a) a failure to interpret and apply national law in a way that promotes the spirit of Article 5 (and so its underlying purposes), or (b) a failure to perform the positive obligations imposed on a State by Article 5.

The first route to State responsibility triggers an examination of direct involvement.

The second route to State responsibility is based on a failure to comply with (a) the positive obligations imposed by Article 5, or (b) its spirit and so on their violation and not their performance.

So a forward looking approach based on the existence of positive or negative obligations of the State and the mirror rights of the individual does not reflect the approach taken by the ECtHR to whether the third component of State responsibility exists. On that approach the third component would be satisfied in every case when the first two components existed on the ground because those obligations would exist in all such cases.

However the approach based on the need to establish a failure to perform rather than the existence and performance of obligations imposed on a State to secure the rights and freedoms conferred by the ECHR does not mean that an approach that determines what the relevant positive and negative obligations in respect of particular situation are or would be is wrong. Indeed, this has to be identified to establish whether there has been a failure to comply with them by, for example, either:

i) not putting in place an appropriate regime of law, supervision and regulation, or

ii) by failing to interpret the regime that has been put in place or to apply powers under it in a way that promotes the spirit and so the purposes of Article 5.

But the determinative issue on the approach taken by the ECtHR is whether at the relevant time or times there was an existing failure to comply and so a breach of those obligations.

This reflects the backwards looking approach taken by the ECtHR that I have mentioned earlier, and the general approach to domestic law and Convention rights to which I now turn.

The general approach to domestic law and Convention rights

This is addressed in the judgment of Lord Reed in R (Osborne) v The Parole Board of England and Wales [2014] AC 115 which concerned the right of a prisoner to an oral hearing before the Parole Board and so the common law principle of fairness and Article 5(4). The Supreme Court concluded that the Parole Board breached its duty of procedural fairness to the appellant by failing to offer him an oral hearing, and was accordingly in breach of Article 5(4) of the Convention.

On the general approach to be adopted Lord Reed said:

"Domestic law and Convention rights

54. The submissions on behalf of the appellants focused on article 5(4), and paid comparatively little attention to domestic administrative law. As I shall explain, that approach does not properly reflect the relationship between domestic law (considered apart from the Human Rights Act) and Convention rights.

55. The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states. For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. ------------------- As these examples indicate, the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system.

56. The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. ------------------------------------ In relation to article 5(4) in particular, the court has made it clear that in order for there to be compliance with that guarantee, there must in the first place be compliance with the relevant substantive and procedural rules of domestic law (Koendjbiharie v The Netherlands (1991) 13 EHRR 820, para 27).

57. ----------------------- The Human Rights Act has however given domestic effect, for the purposes of the Act, to the guarantees described as Convention rights. It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so. The Act also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.

58. That approach is now well established. -------------

63. Against the background of those authorities, the error in the approach adopted on behalf of the appellants in the present case is to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law. Properly understood, Convention rights do not form a discrete body of domestic law derived from the judgments of the European court. As Lord Justice-General Rodger once observed, "it would be wrong … to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply" (HM Advocate v Montgomery 2000 JC 111, 117).

It follows that the domestic statutory framework and the common law needs to be considered to determine whether gaps in it, or the manner in which it has been implemented, found a breach of a Convention right and so in broad terms a right of SRK not to be deprived of his liberty in an arbitrary manner. That examination could also show that the domestic regime goes beyond what is required by the positive obligations imposed by Article 5.

When the issue is whether a provision has been interpreted or applied in the spirit of Article 5, and so to promote its purposes, there is some overlap or circularity in this approach. For example, this is the case on the issue relating to the construction of the definition in the MCA of a deprivation of liberty because s. 3 of the Human Rights Act 1998 (the HRA) requires the interpretation to be compatible with Convention rights and so their purposes.

An example of this general overall approach is shown in one of the cases in the bundle before me, Riera Blume v Spain [2000] 32 EHHR where at paragraph 31 the ECtHR said:

It remains to be ascertained whether that deprivation was compatible with Article 5§1. The Court reiterates that Article 5§1 refers essentially to national law and lays down an obligation to comply with its substantive and procedural rules. It requires, however, that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness.

The approach to be applied to determining whether there is an Article 5 Deprivation of Liberty

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.

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.

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.

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 domestic regime of law, supervision and regulation

An important part of the relevant domestic law is the MCA. It contains provisions and so "a procedure prescribed by law" that enables persons on the ground to make effective and lawful decisions on behalf of a person who lacks capacity on the basis that they do not incur any liability for those decisions.

The amendments introduced to MCA to fill the "Bournewood gap" identified in HL v United Kingdom (2005) 40 EHRR 761 are also important. In that case, the State was directly involved and the ECtHR concluded that the applicant did not have a procedure available to him that satisfied the procedural requirements of Article 5.

The domestic regime relating to the role of public authorities to vulnerable people and the supervision and regulation of providers of care and support to them is also an important part of the relevant domestic regime of law, supervision and regulation.

It was not examined in any detail before me. Rather, and in my view correctly, the case was argued by reference to the analysis of that regime by Munby J (as he then was) in Re A and Re C [2010] EWHC 978 (Fam) 64. In that case the issue was described as whether the domestic care at home by their parents of a child and an adult in the same family amounted to a deprivation of liberty that engaged the protection of Article 5. I agree that Munby J's conclusions on the nature of the role and involvement of the local authority in respect of the adult are relevant and apply to the existing regime of law and regulation in England and Wales although they pre-date the Care Act 2014 and other current legislation. It was not argued that the involvement of the Care Quality Commission (the CQC) (which also has responsibilities under the Deprivation of Liberty Safeguards (the DOLS)) made any relevant difference and I do not think it does.

At paragraph 69 Munby J said:

69. Hedley J's compelling analysis in Re Z (Local Authority: Duty) [2004] EWHC 2817 (Fam), [2005] 1 FLR 740, at para [19] of a local authority's duties towards a vulnerable adult seeking assisted suicide is as illuminating for what it does not say as for what it does:

"In my judgment in a case such as this the local authority incurred the following duties:

(i) to investigate the position of a vulnerable adult to consider what was her true position and intention;

(ii) to consider whether she was legally competent to make and carry out her decision and intention;

(iii) to consider whether any other (and if so, what) influence may be operating on her position and intention and to ensure that she has all relevant information and knows all available options;

(iv) to consider whether she was legally competent to make and carry out her decision and intention;

(v) to consider whether to invoke the inherent jurisdiction of the High Court so that the question of competence could be judicially investigated and determined;

(vi) in the event of the adult not being competent, to provide all such assistance as may be reasonably required both to determine and give effect to her best interests;

(vii) in the event of the adult being competent to allow her in any lawful way to give effect to her decision although that should not preclude the giving of advice or assistance in accordance with what are perceived to be her best interests;

(viii) where there are reasonable grounds to suspect that the commission of a criminal offence may be involved, to draw that to the attention of the police;

(ix) in very exceptional circumstances, to invoke the jurisdiction of the court under s 222 of the Local Government Act 1972.

My view is that its duties do not extend beyond that."

The local authority, it is to be noted, may provide advice and assistance, but there is nothing to suggest that it can intervene to regulate or control matters without judicial assistance. I respectfully agree with Hedley J's analysis.

In my view that description can be adopted with the addition of a reference to considering taking proceedings in the COP and to my mind that would also cover taking such proceedings if that was thought appropriate. This reflects what the Applicant Council did in this case.

Munby J went on to consider the ability of a local authority, without judicial assistance, to regulate and control the situation on the ground under the doctrine of necessity and the inherent jurisdiction and reached the same conclusion on the nature of their role. I agree and consider that this applies under the present regime of law, supervision and control. That analysis founds his conclusion at paragraph 109 of his judgment (cited below) that the local authority was not directly or actively involved in the implementation of the care put in place and implemented by the family.

Relevant provisions of the MCA

These need to be examined to see whether they satisfy the positive obligations imposed on the State by Article 5 and its spirit and so provide:

i) a procedure prescribed by law for SRK's (private) deprivation of liberty within Article 5(1), and

ii) SRK with a practical and effective access to a court to enable him to challenge his deprivation of liberty as required by Article 5(4).

In this context the "Bournewood gap" and so the conclusion of the ECtHR in HL v United Kingdom are relevant. There the ECtHR concluded that:

i) there was a failure to provide a "procedure prescribed by law" as required by Article 5(1) because of the lack of procedural safeguards in respect of the application of the law of necessity which was not cured by the possibility of a later review (see paragraphs 102 to 124 of the judgment), and

ii) the ability to challenge a deprivation of liberty by habeas corpus or judicial review, and to bring a damages claim did not satisfy Article 5(4) (see paragraphs 136 to 142).

Paragraphs 102 to 124 of the judgment are headed "Lawfulness and protection against arbitrary detention" and end with the following:

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 Act (see paragraphs 36 and 54 above) 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 appointment 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. The Court observes that, as a result of the lack of procedural regulation and limits, 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" (Lord Steyn, paragraph 49 above).

122. The Court notes, on the one hand, the concerns regarding the lack of regulation in this area expressed by Lord Steyn (see paragraph 47 above), Lady Justice Butler-Sloss (see paragraph 61 above) and the Law Commission in 1995 (see paragraphs 66-68 above). On the other hand, it has also noted the Government's understandable concern (outlined in paragraph 80 above) to avoid the full, formal and inflexible impact of the 1983 Act. However, the current reform proposals set out to answer the above-mentioned concerns of the Government while at the same time making provision for detailed procedural regulation of the detention of incapacitated individuals (see, in particular, the Mental Capacity Bill described in paragraphs 77-78 above).

123. The Government's submission that detention could not be arbitrary within the meaning of Article 5 § 1 because of the possibility of a later review of its lawfulness disregards the distinctive and cumulative protections offered by paragraphs 1 and 4 of Article 5; the former strictly regulates the circumstances in which one's liberty can be taken away, whereas the latter requires a review of its legality thereafter.

124. The Court therefore finds that this absence of procedural safeguards fails to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, to comply with the essential purpose of Article 5 § 1. On this basis, the Court finds that there has been a violation of Article 5 § 1 of the Convention.

This is further confirmation that an important factor in the approach to the determination of whether there has been a failure to comply with the positive obligations imposed by Article 5, and so a violation of Article 5, is whether the procedure and the steps taken to protect the individual against arbitrary detention in a practical and effective way.

I have set out the most relevant parts of sections 1, 4, 4A, 5, 6, 16, 18, 21A and 64(5) and (6), in Part 1 of the Schedule to this judgment. The DOLS are set out in Schedules A1 and 1A.

Whether the COP could authorise a welfare deputy to provide the subjective component of a deprivation of liberty within Article 5 is outside the scope of this judgment. It has not been done, and it was not suggested in argument as a possible solution. Rather, the case proceeded on the basis that the subjective component is satisfied. It seems to me that in most cases this possibility would not help much because all it would do is add a person on the ground with obligations to monitor and review the (private) deprivation of liberty. Further, to be possible it would have to be outside the ban imposed by s. 4A(1) of the MCA and so not an Article 5 Deprivation of Liberty.

The provisions of the MCA provide "a procedure prescribed by law" that enables persons on the ground to make effective and lawful decisions about the care and treatment of a person who lacks capacity by giving those decision makers and care providers the protection conferred by s. 5 of the MCA. When s.5 applies it has the consequences that the providers of care and support, and those who apply P's money to pay for it, incur no liability for their decisions and acts if they would not have done so if P had had the relevant capacity and had consented to those decisions and acts. This is a core part of the MCA aimed at promoting decisions on the ground in connection with care and treatment of persons who lack capacity and it effectively results in such decisions being treated as ones that a person with capacity had consented to. A deputy also relies on the authority given by the order of the COP that appoints him to manage P's property in P's best interests.

For s. 5 to apply the decision must be made in P's best interests and so those on the ground must apply the same test as the COP if and when they consider the relevant situation.

But there are limitations imposed on this procedure for making decisions on behalf of a person who lacks capacity. The relevant ones here are those in respect of situations in which the relevant person is either:

i) being deprived of his liberty as defined by s. 64 of the MCA, or

ii) being restrained in a manner that means that s. 5 of the MCA cannot be relied on.

Section 4A provides that the protection given by s. 5 does not give protection against liability for an act that deprives P of his liberty (as defined by the MCA). As a result the MCA provides procedures for the authorisation of such a deprivation of liberty. They apply to persons who are not ineligible to be deprived of their liberty under the MCA and are provided under the DOLS or by the making of a welfare order by the COP.

The DOLS do not apply to SRK because they apply only to persons in hospitals and care homes. An authorisation under the DOLS does not involve any application to the COP (or any other court). Rather access to the court under and in respect of this administrative authorisation process is through an application under s. 21A.

The DOLS were introduced as a part of the amendments to address the "Bournewood gap". It was not suggested that when they apply they do not do so and in my view they do by providing (a) a procedure, and (b) access to the COP that provides appropriate protection against arbitrary detention. The access to the COP under s. 21A is given to P and others (e.g. P's Relevant Person's Representative (RPR)) and such an application may or may not be made.

The DOLS are detailed and notoriously complicated. A part of the structured procedure and assessment leading to the making of an authorisation and its review under the DOLS assessments of six qualifying requirements must be carried out (see paragraph 12 of Schedule A1 to the MCA). These include a best interests assessment.

When an application is made to the COP for a welfare order to authorise a deprivation of liberty, the COP requires evidence of the matters that would be covered by the assessment of the qualifying requirements under the DOLS (see COP Practice Direction 10AA, and the form referred to in it).

When the DOLS do not apply, and so in SRK's case, the issue is whether the procedure introduced by the amendments to the MCA:

i) requires the making of a welfare order by the COP to authorise a (private) deprivation of liberty within Article 5, and

ii) if it does not, whether that of itself is a breach of the State's positive obligations under Article 5, or whether and in what circumstances a failure to obtain such an order would amount to a breach of those positive obligations or the spirit of Article 5.

Sections 6 and 20 of the MCA provide that protection under s. 5 or the authority of the deputy is not given for acts that are intended to restrain P (as defined) unless conditions are satisfied.

The MCA refers in ss. 5 and 4A to a person doing an act as ("D"). I do not have to decide whether the person paying for an act to be done is not D and so not a person who is depriving P of his liberty. But, whether or not that is the case when applying the best interests test, and the authority conferred by a deputyship order, a deputy who agrees to pay for care and treatment of P or for a property for P could not properly ignore the issues (a) whether P was being deprived of his liberty or restrained, and (b) whether that was lawful or needed authorisation under the DOLS or by the making of a welfare order (see by analogy PJ v A Local Health Board and Others [2015] UKUT 0480 (AAC) at paragraph 109 and the decisions mentioned therein).

The need for everyone considering and applying the best interests test to take these matters into account is based on the principle in s. 1(6) of taking the least restrictive option and the general point that decisions made on behalf of P should result in a lawful situation on the ground.

As a result, in my view, a deputy should raise those issues with the relevant providers and the relevant local authority with statutory duties to safeguard adults. 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.

Unless the situation on the ground could be altered in a way that meant that P was not being deprived of his liberty, then, dependent on which of the rival arguments in this case is correct, I consider that the deputy would then either have to take steps:

i) to ensure that the situation on the ground was authorised under the DOLS or by the making of a welfare order, or

ii) to ensure that the situation was kept under review by the relevant decision makers on the ground, the local authority and P's family and that they all remained of the view, and he agreed, that the care and treatment being provided was the least restrictive option to best promote P's best interests.

Such steps are directed to ensuring that there is no failure by public authorities and others to perform their obligations under the domestic regime of law, supervision and regulation and so, in the case of public authorities, under Article 5.

It is well established that the differences between restricting or restraining a person and a deprivation of liberty are ones of degree. Here it is in my view correctly common ground that SRK is being deprived of his liberty within Article 5 and the issue was not addressed before me whether s. 5 of the MCA did not apply to SRK on the basis that if he was not being deprived of his liberty as defined by the MCA he was being restrained. This may be relevant in other cases and if it applied here would be another reason why a welfare order should be obtained.

Essential issues and their consequences on the third component

The essential issues on direct involvement and their consequences are:

(1) Whether the State was directly involved in SRK's (private) deprivation of liberty within Article 5 before the present application for a welfare order was made to the COP? If it was then the third component was satisfied at the date of that application and on any view SRK was then being deprived of his liberty as defined by the MCA and so that application was required.

(2) Did the present application to the COP for a welfare order turn SRK's deprivation of liberty from one that was outside the MCA definition to one that was within it and so create the same result as in (1)?

The essential points on State responsibility based on a violation of Article 5 and their consequences are:

(1) Does the domestic regime of law, supervision and regulation require that a welfare order should be sought and made? If it does, then:

a. the COP must entertain all such applications and make an order with the result that the State so becomes directly involved in SRK's deprivation of liberty within Article 5, and

b. if an application to the COP for a welfare order is not made, there will have been a failure to comply with the positive obligations of the State under and the spirit of Article 5 by any public authority who knows or ought to know of the existence of a (private) deprivation of liberty within Article 5.

(2) If that domestic regime enables but does not require an application for and the making of a welfare order, does a failure to exercise the power or ability to apply for and make a welfare order constitute a breach of the State's positive obligations under Article 5 or its obligation to interpret and exercise its powers in a way that promotes the spirit and purposes of Article 5? The answer to this question gives rise to two possibilities depending on whether the obligations imposed by Article 5 on the State require the domestic regime to include a requirement that SRK's deprivation of liberty is authorised by the COP making a welfare order:

a. If they do, then there is an effective requirement to exercise that power or ability by making an application to the COP for a welfare order which founds the result in (1).

b. If they do not, the consequence of how that power or ability is exercised would be fact sensitive and turn on whether an application to the COP was or was not needed to promote the spirit and purposes of Article 5. If it was, the failure to make the application would establish the third component and the making of the application would found the result in (1). But if it was not, the third component would not be satisfied and no application need be made.

Background facts

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

He received a substantial award of damages which provided the funds for his accommodation in an adapted bungalow and provides his 24-hour care package. The damages award was directed to meeting the costs of such accommodation and care for the remainder of his life. He is now in his late thirties.

Pursuant to his care package he is constantly monitored either by support workers or by the use of assistive technology. His damages award is managed by his property and affairs deputy, IMTC. His accommodation and care package was arranged and is provided without any input from the Applicant Council or any other public authority. The care is arranged by a specialist brain injury case manager and is provided by private carers.

Accordingly, Counsel for the Secretary of State correctly submitted that it was common ground that: the bungalow is SRK's private residential property; the accommodation and package of care was arranged without any involvement by the Applicant Council; the package of care is managed by a private specialist brain injury case manager; the care is funded using compensation monies and managed by IMTC; the carers are provided to SRK privately; SRK cannot consent to the arrangements; and the arrangements result in an objectively assessed deprivation of liberty.

Before the decision of the Supreme Court in Cheshire West in March 2014, IMTC notified the Applicant Council of SRK's situation and that it may amount to a deprivation of liberty. Following that referral, the Applicant Council carried out a number of assessments. These continued after the decision in Cheshire West and in August 2015 the Applicant Council made an application to the Court of Protection (the COP) for a welfare order authorising SRK's deprivation of liberty. That application was made using the Re X procedure and therefore a COP DOL10. That form and the documents accompanying it contain cogent and persuasive evidence that SRK lacks capacity to make decisions regarding his care and residence and that the care package being provided to SRK (and so SRK's care regime) is the least restrictive available option to best promote his best interests.

This view is shared by SRK's brother and sister. His sister is his litigation friend. The consensus view is reflected in the following conclusions set out by a social worker in the evidence put before the COP:

From my observations and discussions with family, care staff and professionals involved, it is my opinion that SRK is being supported in a person centred way ensuring that he has choice and control where possible and that any decisions are made in his best interests, considering his past wishes and involving family and appropriate professionals. SRKs living in a bungalow that was purchased for his use and is adapted so that he can mobilise in his wheelchair, he has a room with gym equipment and moving and handling equipment is in place so that SRK's care needs can be met. SRK has a small number of regular support workers from the care provider who are familiar with SRK's body language and communication needs and are aware of his past preferences and family's views regarding how you supported. SRK's family and care staff involved in his care feel he is being supported in the least restrictive way and in his best interests.

I do not feel there is a less restrictive option for SRK and feel that his current arrangements are in his best interests and should continue. I have discussed with the epilepsy nurse specialist regarding SRK being observed continually, he felt that at present this is proportionate to the risk, however, as assistive technology progresses, there may be less restrictive options in the future and it would be beneficial to review this regularly.

The concrete position on the ground for SRK is therefore that he has a home and a care regime funded from his damages award and the support of family who, together with those providing and managing the care, SRK's property and affairs deputy and the Applicant Council consider that his care package is the least restrictive available option to best promote SRK's best interests. No problem arises as to the representation of SRK in these proceedings because his sister acts as his litigation friend. It follows that this is an obvious case for a streamlined procedure for the making of a welfare order.

However, the case was transferred for hearing by a High Court judge to determine whether SRK's care arrangements amount to a deprivation of his liberty which is imputable to the State.

In this case, it is not easy to see what value will be added to the protection of SRK by the making of a welfare order and its review by the COP. This is because the COP is reliant upon information provided by others and SRK has active and caring support from members of his family, his care team and his property and affairs deputy. It is also the case that the Applicant Council is now aware of SRK's position and there is no real doubt that if any of the persons who are actively involved in his life thought that the Applicant Council, and further or alternatively the COP, should become involved they would initiate this.

In all cases of this type, namely those in which P has received a substantial damages award from which P's accommodation and care is provided, P will have the support of those providing the care and a property and affairs deputy appointed by the COP, or trustees, or possibly an attorney (if one had been appointed and the damages are paid to him). But, in a number of such cases P may well may not have the support of family or friends who take an active role and interest in P's care and life.

It is well known that the decision in Cheshire West has significantly widened what was previously thought by many to constitute a deprivation of liberty. This has meant that:

i) the DOLS apply to more people than was previously thought, and

ii) there are likely to be tens of thousands of people to whom the DOLS do not apply, because they are not in a Care Home or a Hospital, who are being deprived of their liberty as defined by the MCA with the result that welfare orders authorising that deprivation of liberty should be sought from the COP.

The additional burdens that this is imposing and will impose on local authorities are also well-known and there have been a number of recent cases addressing the procedure that the COP should take in such cases to ensure that the minimum procedural requirements for them are met.

If applications for welfare orders have to be made in cases within the class represented by this one, and so in cases in which the accommodation and all of the care is provided privately, this will increase the number of applications to the COP for welfare orders authorising a deprivation of liberty. It is not easy to give an accurate estimate of the number of such cases. IMTC acts as a property and affairs deputy in a number of cases (approximately 9% of the professional deputyships across the country). It estimates that it has 25 cases in the same class as SRK's and thus cases in which P lives in their own home with a 24-hour care regime entirely funded privately with no ostensible state involvement in the arrangements. If this represents 9% of that class it would mean that there would be between 250 and 300 similar cases across the country. But this does not include cases managed by either a lay deputy (about 47% of the total number of deputy cases currently supervised by the Office of the Public Guardian) or trustees or an attorney. I do not know how often lay deputies are appointed by the COP in cases when the damages awarded to P are substantial or how many of those awards are paid to trustees or attorneys.

IMTC also points out that there are greater numbers of cases in which a deputy funds only part of the cost of P's social and health care from P's private assets and that the balance is provided by a local authority or an NHS body. Such cases may well give rise to points on the direct involvement of the State that do not arise in cases within the class represented by this one.

Accordingly, the class of case represented by SRK's case 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 Deputyship

By an order of the COP dated 9 June 2011 IMTC was appointed as SRK's deputy to make decisions on his behalf that he was unable to make for himself in relation to his property and affairs subject to any conditions or restrictions set out in that order. This appointment followed the discharge from deputyship of a named individual in the firm of Irwin Mitchell who had been appointed as SRK's receiver in 2006 and had become his deputy on 1 October 2007.

By that order IMTC was authorised to take possession and control of the property and affairs of SRK and to exercise the same powers of management and investment as he has as beneficial owner subject to the conditions set out in the order. One of those conditions was that:

Upon completion of the claim for damages /compensation the deputy shall apply by COP9 application for directions upon the management of SRK's estate and shall file with the application a witness statement in form COP24 setting out: (i) the proposed deployment of SRK's capital identifying the nature and cost of the assets to be acquired, and (ii) an annual income, capital and expenditure budget for the next three years.

On 7 June 2012, IMTC sent an application to the COP pursuant to that condition. This was supported by a witness statement dated 1 June 2012 by which IMTC informed the COP that SRK's claim for damages had been settled and exhibited the final order dated 19 April 2012 along with a copy of the approval advice supporting that settlement. This informed the COP that the settlement resulted in a large capital award and a significant award of periodical payments throughout SRK's life. The evidence confirmed that the property referred to in the evidence supporting the application for appointment of IMTC as SRK's deputy had been purchased, that part of the damages award would be spent on adapting the property and that it was thought that SRK would move in in December 2012. The statement also set out information relating to SRK's capital and income which includes some state benefits and exhibited a proposed budget from December 2012 which includes payments for his support workers and treatment and identifies the balance to be met from capital deducting his monthly income of about £21,000. By that application IMTC did not seek any order or direction and pointed out that it was made because of the condition included in the order appointing it a deputy dated 9 June 2011.

The judicial directions on the file are that it appeared that IMTC did not need any further order at present and the judge did not consider that any was necessary. That note is dated 23 August 2012. IMTC were informed by letter from the court dated 23 September 2012 that no further action was necessary at that time and the file was sent to the registry in October 2012.

No further application has been made to the COP by IMTC as SRK's property and affairs deputy.

It follows that a court, and so a public authority, has had an active part in decisions relating to the funds used to provide a home and a package of care for SRK namely:

i) when awarding the damages which were fixed by reference to the accommodation and care needs of SRK, and

ii) by appointing a property and affairs deputy and giving directions to that deputy.

It is unlikely that the civil court when awarding the damages, or the COP, would have considered whether SRK was being deprived of his liberty because at those times it is unlikely that it would have been thought that this was the case. In any event, no order was made by the COP under s. 16(2)(a) of the MCA.

The overall effect of the orders of the civil court and the COP has been to approve the amount needed to care for SRK, its payment to the property and affairs deputy and its application by the property and affairs deputy, who has been left to get on with managing the assets and funds for the purposes for which they were awarded.

The main arguments put to me and comment

It was not argued that the State was responsible for SRK's deprivation of liberty within Article 5 as a result of:

i) a failure by the State to perform its positive obligations under Article 5 by not introducing a regime of law supervision and regulation that complied with those obligations and the spirit of Article 5,

ii) any failure to properly interpret or apply that regime of law, supervision and regulation,

iii) the direct involvement of the State as a result of the involvement of the COP in these proceedings and earlier in the appointment of and in giving directions to SRK's property and affairs Deputy (IMTC), or of the High Court when awarding damages. (Save that a passing reference was made by the Applicant Council in reply to the authorisation of the damages award).

However I consider that applying the approach I have set out above all of these points merit consideration.

The argument that SRK was the subject of an Article 5 Deprivation of Liberty. The parties apart from the Secretary of State argued that the actual involvement of the Applicant Council alone or together with the registration of SRK's placement with the CQC meant that the State was responsible for SRK's deprivation of liberty.

This argument was advanced on the basis that the knowledge of the Applicant Council (and the CQC) triggered their positive obligations under Article 5 (and I add their obligations under the domestic regime of law, supervision and regulation) and that it was their performance of those obligations rather than any violation of them that made the State responsible for SRK's (private) deprivation of liberty.

The positive obligations that were relied on were (a) to investigate the deprivation of liberty, (b) to take reasonable steps to bring it to an end and if that was not possible (c) to make an application to the COP. It was not argued that it was the last step that made the State responsible. Nor was it said whether and if so when in that chain of performance of positive obligations the State became responsible.

Rather, the focus was on the triggering of those positive obligations and it was not explained why it was said the authorities relied on supported the view that their performance meant that the State was directly involved and so responsible or otherwise became responsible. In my view, the decision of Munby J in Re A and Re C supports the view that the performance of all the steps taken in this case and the involvement of the CQC do not found the third component of State responsibility.

However, on my analysis of the approach to be taken this argument is that the positive obligations imposed by Article 5 and its spirit require that SRK's deprivation of liberty is authorised by the making of a welfare order by the COP and so:

i) if an application is made to the COP for a welfare order it must deal with it and if it makes such an order the State is directly involved in the deprivation of liberty within Article 5 that it authorises, or

ii) if no such application is made, or if such an application is not granted when a deprivation of liberty within Article 5 exists on the ground, the State has failed to comply with its positive obligations under Article 5 and its spirit.

Here no issue arose as to whether the State knew or ought to have known of SRK's deprivation of liberty. It may in other cases.

Alternatively, it was argued that SRK's deprivation of liberty should as a matter of policy be treated as an Article 5 Deprivation of Liberty to give him the protection of its authorisation by the COP and so its regular review by the COP. Although not advanced in this way this argument equates to one that is based on the need to determine whether a failure to obtain or grant a welfare order results in a situation in which the purpose and spirit of Article 5 has not been fulfilled because the relevant person has not been protected from arbitrary detention.

The alternative argument advanced by SRK's litigation friend that the MCA definition of a deprivation of liberty excluded the need for State responsibility and so was satisfied in SRK's case was not adopted by the other parties. It is an alternative route to the same result on the basis that the domestic procedure prescribed by law requires that SRK's deprivation of liberty is authorised by the COP making a welfare order based on it.

The Secretary of State's argument that SRK is not the subject of an Article 5 Deprivation of Liberty. This is that:

i) the domestic regime of law, supervision and regulation of a deprivation of liberty within Article 5 satisfies the positive obligations of the State under Article 5 to put in place such a regime, and that

ii) its existence and proper performance does not of itself mean that the State is responsible for all such deprivations of liberty.

Rather, he argues that State responsibility is determined by the performance or the failure to perform that domestic regime because this can result in:

i) the State becoming directly involved in the deprivation of liberty, or

ii) the State violating the spirit and so underlying purposes of Article 5 or the positive obligations it imposes on the State.

He argues, and I agree that the cases relied on by the other parties support the conclusion that by investigating a deprivation of liberty and by supervising or regulating a provider of it the State does not become sufficiently directly involved in a (private) deprivation of liberty within Article 5 to make it responsible for it.

He accepts that under the domestic regime (and the positive obligations imposed by Article 5) a local authority (and other public authorities) can have obligations to investigate and take steps to ensure that the care and living arrangements of a vulnerable person and so one who lacks relevant capacity to consent to them is the least restrictive available option to best promote his best interests. But he argues that:

i) bare notification of a (private) deprivation of liberty within Article 5 does not trigger an obligation on the local authority (or any other public authority) to investigate or take steps, provided that the notification does not obviously give rise to any cause for concern,

and that as and when those obligations do arise:

ii) their performance does not always mean that the State is directly involved in the deprivation of liberty,

iii) their proper performance cannot be a violation of the positive obligations imposed by Article 5 or its spirit, unless the domestic regime falls short of what Article 5 imposes or requires, and

iv) having performed them the State does not in all cases have to refer a (private) deprivation of liberty within Article 5 to the COP by seeking or ensuring that someone else seeks a welfare order to authorise the (private) deprivation of liberty within Article 5.

He argues that whether a failure to refer to the COP is a violation of the positive obligations imposed by or the spirit of Article 5 is fact sensitive.

In my view the main authorities relied on in oral argument before me support this argument. However it is dependent on it being established that:

i) under the domestic regime and so the procedure prescribed by the law of England and Wales a (private) derivation of liberty within Article 5 can be lawfully put in place, paid for and managed, without a welfare order being made by the COP, and

ii) such a domestic regime complies with the positive obligations imposed by Article 5 and its spirit and underlying purposes.

Point (i) involves an examination of what decisions can and cannot be made on behalf of P under the domestic regime without the involvement of the COP and so essentially what is covered by s. 5 of the MCA. Point (ii) involves an examination of the question whether absent a referral to and so subsequent review by the COP the domestic regime provides sufficient substantive and procedural protection against arbitrary detention.

The essential difference between the two arguments. In my view, this is whether the positive obligations imposed by Article 5 or its spirit and so its purpose to protect individuals from arbitrary detention would be violated if, on a proper application of the domestic regime of law, supervision and regulation a welfare order is not made by the COP to authorise SRK's (private) deprivation of liberty within Article 5.

The main authorities referred to before me and comments on them

The leading authority is Storck (Storck v Germany [2005] ECHR 406). I set out passages from the judgment of the ECtHR with my emphasis in Part 2 of the Schedule hereto.

Both the guidance given by the ECtHR and its application by the Court are important. 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 her father's demand who believed her to be suffering from a psychosis. The applicant's mother had suffered from a paranoid-hallucinatory psychosis. Under the relevant domestic law that clinic was not entitled to detain patients who were to be kept in accordance with the Act of the Land Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts. 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. That court allowed the applicant's action for damages, as her detention had been illegal under German law and found that her detention would only have been legal if she had consented to it and that she had not. The Bremen Court of Appeal disagreed with the Bremen Regional Court's finding that the Applicant had illegally been deprived of her liberty during her stay and treatment in the clinic. On appeal by the Applicant to it the Federal Court of Justice refused to admit the Applicant's appeal. The Federal Constitutional Court refused to admit the Applicant's constitutional complaint against that decision of the Appeal Court.

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 of the Convention" (see paragraph 78 of the judgment).

The Court then turned to consider the responsibility of the respondent State for that situation on the ground and concluded (with my emphasis):

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 and raises issues going to the merits of the case, which cannot be regarded merely as preliminary issues (see, mutatis mutandis, Nielsen, cited above, p. 22, § 57). 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.

At the heart of the ECtHR's reasoning on direct involvement and the breach of the State's positive obligations is the intervention by the police returning the Applicant to the private clinic. Indeed, the finding of direct involvement seems to be based solely on that because the comments that, at that time, there was no system providing for supervision by the State of the lawfulness of the confinement and that the police intervention did not lead to any such control relate to the later finding that the State had violated its positive obligations. But, in any event, the approach taken to direct involvement shows that there is a need to identify specific acts of direct involvement by the State (see also Riera Blume v Spain [2000] 32 EHHR at paragraphs 32 and 35).

The approach to founding State responsibility on the need to have regard to the spirit of Article 5 in interpreting the national law provides a close link to the issue whether there has been a violation of the positive obligations imposed by Article 5 on the State to provide practical and effective rights to protect its citizens and in particular its vulnerable citizens from arbitrary detention.

The conclusion that Germany had violated its positive obligations is founded on the conclusion 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 in a private clinic because in particular when persons are held there without a court order there was a positive obligation on the State to exercise supervisory control over the lawfulness of the detention and the State did not exercise any such control for some 20 months.

The ECtHR concluded that the lack of effective State control was most strikingly shown by the fact that the forced return of the applicant to the clinic did not trigger any such control or examination of the lawfulness of the confinement in a situation of family conflict.

So what the ECtHR did not do was to examine whether if, as should have happened, there had been a court order, the supervision and control of the Applicant's confinement would have satisfied the positive obligations of the State or whether the mechanisms referred to in paragraph 107 of the judgment that were introduced later would have done so.

Accordingly, Storck:

i) supports the view that State responsibility based on direct involvement is founded on the direct participation of the State in the care, support or related events (there the return of the applicant to the clinic by the police) that create the deprivation of liberty within Article 5 , and

ii) does not help on whether, and in what circumstances, either the proper or the defective performance of a regime that has been put in place pursuant to the positive requirements of Article 5 would amount to a violation of those positive obligations.

Further, it is clear from Storck that the ECtHR was of the view that a (private) deprivation of liberty within Article 5 may well not be the responsibility of the State and, in my view, its analysis shows that in deciding whether the State is responsible for it close attention must be paid to whether the domestic system of law, supervision and regulation of a (private) deprivation of liberty within Article 5 satisfies the spirit and underlying purposes of Article 5 and so provides a procedure prescribed by law that gives practical and effective substantive and procedural safeguards against the arbitrary deprivation of liberty of the relevant person.

Storck was considered and applied by Munby J (as he then was) in Re A and Re C [2010] EWHC 978 (Fam) 64.. I have set out passages from his judgment in Part 2 of the Schedule hereto with my emphasis.

His ultimate conclusion was that, applying pre Cheshire West authority the objective component of a deprivation of liberty within Article 5 was not satisfied. But he dealt with that issue last and, before turning to it, he concluded that the involvement of the local authority did not make the State liable under Article 5. At paragraphs 109 and 110 with my emphasis he said:

109 I agree with Ms Freeborn, Mr O'Brien and Ms Ball. There was no direct or active involvement by the local authority. It was not the decision-maker. It took no active steps to implement what the families had decided. Mere knowledge, in my judgment, is not enough. Knowledge may suffice to trigger a local authority's duty to investigate and, if appropriate, to invoke judicial assistance. But, as I have already said, there is no basis for attributing to the local authority here any failure in its performance of such obligations.

Article 5: Is there a deprivation of liberty?

110. My conclusions thus far mean that there has been no breach of Article 5 by the local authority and that the involvement of the local authority has not been such as thereby to make the State liable under Article 5 for whatever is happening to A and C in their homes. But the matter having been brought – properly and appropriately – to the attention of the court it is my duty under Article 5 to consider whether, as a matter of fact, either A or C is being "deprived of her liberty" in the sense in which that expression is used in Article 5(1).

He pointed out that the ECHR imposes negative and positive obligations on the State and broadly accepted the analysis of counsel for the Equality and Human Rights Commission which he recorded at paragraph 85. This is a helpful categorisation of those obligations. It is to be noted that it does include an obligation to initiate proceedings to obtain court authorisation.

So Munby J concluded that:

i) when a local authority knows or ought to know of a situation that is or might be a deprivation of liberty within Article 5 its positive obligations under Article 5 are triggered, and that given the state of uncertainty on what was or was not a deprivation of liberty the local authority was entitled to bring the proceedings and was acting properly in doing so, and so the court had a duty to consider whether there was a deprivation of liberty within Article 5, but

ii) by performing its role and so its positive obligations (identified in paragraphs 69 and 85 of the judgment) including the making of the application to court the local authority did not make the State responsible for any such deprivation of liberty.

Munby J does not address:

i) whether there would have been a breach of the positive obligations of the State if the local authority had not brought the matter to the attention of the court,

ii) whether the application to the court and so the court's involvement meant that the State would have been responsible if he had concluded that the situation on the ground was a deprivation of liberty within Article 5,

iii) whether the court's involvement meant that if he was wrong on the point that there was not an objectively assessed deprivation of liberty within Article 5 that would violate the spirit of Article 5, or

iv) whether the relevant system of domestic law, supervision and regulation satisfies the spirit and underlying purposes of Article 5 and so by introducing it the State has satisfied rather than violated its positive obligations under Article 5.

His focus is on the role of the local authority under a system of domestic law, and what it did in exercise of the role. His approach supports the view that provided that the introduction and so terms of that domestic system of law, supervision and regulation satisfy the positive obligations imposed by Article 5:

i) proper performance of that system by a public authority in respect of a (private) deprivation of liberty within Article 5 does not make the State responsible for it, because the State has acted in a way that satisfied its positive obligations imposed by Article 5 and that promoted the spirit and purposes of Article 5,

ii) by performing the positive obligations identified in paragraphs 69 and 85 of the judgment and so its role under the domestic regime of law, supervision and regulation the local authority would not become directly involved in a (private) deprivation of liberty within Article 5, and

iii) direct involvement of the State must be based on the direct participation of the State in the care, support or related events that create the deprivation of liberty within Article 5 and so its imposition.

Points (i) and (ii) reflect the general approach to domestic law and the ECHR discussed above and so the point that the introduction and performance of a domestic system that satisfies the positive obligations under Article 5 cannot "violate" those obligations and as a result found State responsibility for a deprivation of liberty within Article 5.

It follows that the approach of Munby J reinforces the point I have already made that close attention must be paid to 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.

In Chosta v Ukraine [2014] Application No. 35807/05 the ECtHR sitting as a Chamber was concerned with a case in which the applicant had been detained by guards at a factory on suspicion that he had worked two shifts when he was drunk. It said:

The Court reiterates that in order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria --------------

The Court recalls that in certain situations Article 5 of the Convention can be applicable to detention by private persons. The responsibility of a State is engaged in particular if, being aware of such detention, the authorities acquiesced or failed to put an end to it. -------------- In the case of Storck (cited above) the Court also found that a State is obliged to prevent a "vulnerable person's" deprivation of liberty of which it has or ought to have knowledge.

---------------- Although it was partly owned by the State, the company enjoyed institutional and operational independence from it and the guards acted upon the instructions of the company's management. Accordingly, the authorities were not directly responsible for the applicant's stay with the factory guards.

The Court finds that it has not been demonstrated that the authorities were aware of or agreed to the applicant's confinement in the factory premises while it lasted. Moreover, it considers that, contrary to the applicant's allegations, at the material time he could not be considered "vulnerable" and was able to make use of the means of protection offered by Ukrainian law ------------------- In particular, it was open to the applicant either to make a complaint pursuant to Article 146 of the Criminal Code of 2001, or to lodge a civil claim in damages ------------- . The applicant availed himself of the latter avenue and had his claims examined on the merits by the civil courts. It cannot be said that the courts' decisions in the applicant's case were arbitrary or manifestly unreasonable.

The Court finds that the above considerations are sufficient to conclude that the situations complained of did not engage the State's responsibility and thus they do not attract the protection of Article 5 § 1 of the Convention.

This passage provides support for the view that:

i) Article 5 rights do not arise in respect of all private detentions, and

ii) in some circumstances the existence of a remedy and access to a court is sufficient and the State does not have to initiate that access when it knows of a (private) deprivation of liberty.

More recently in Stanev (Stanev v Bulgaria [2012] 55 EHRR 696 the ECtHR has said:

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, cited above) and detention in a private clinic (see Storck, cited above).

(b) Application of these principles in the present case

121. The Court observes at the outset that it is unnecessary in the present case to determine whether, in general terms, any placement of a legally incapacitated person in a social care institution constitutes a "deprivation of liberty" within the meaning of Article 5 § 1. In some cases, the placement is initiated by families who are also involved in the guardianship arrangements and is based on civil-law agreements signed with an appropriate social care institution. Accordingly, any restrictions on liberty in such cases are the result of actions by private individuals and the authorities' role is limited to supervision. The Court is not called upon in the present case to rule on the obligations that may arise under the Convention for the authorities in such situations.

The ECtHR went on to point out that the special circumstances of that case, where no members of the applicant's family were involved in his guardianship, meant that the State was directly involved in it to a sufficient extent to make it attributable the national authorities.

I do not accept that Birmingham City Council v D [2016] EWCOP 8 can be relied on as authority for the proposition that a local authority with no direct involvement in a (private) deprivation of liberty within Article 5 is obliged to make an application to the COP for a welfare order to authorise it. Firstly, Keehan J concluded that there was direct State involvement (see paragraph 132) and so his comments on the impact of the positive obligations of the State at paragraphs 134 and 135 are obiter. Further, it seems to me that paragraph 95(iv) of the judgment in Re A and C which Keehan J cites and relies does not found a conclusion that a local authority is obliged to seek the assistance of the court in all such cases indeed it uses the phrase that "it may be necessary" to do so and Keehan J does not explain why in his case or more generally that "may" became or becomes a "must" when as here and in that case there was no doubt that there was a (private) deprivation of liberty within Article 5. I however acknowledge that I have reached the same effective conclusion through a different route.

Discussion and conclusions

The concrete situation on the ground is that as a result of private arrangements and funding a deprivation of liberty within Article 5 exists. Under the MCA regime others (D) cannot give consent to those arrangements on behalf of P if:

i) SRK is being deprived of his liberty as defined by s. 64 of the MCA, or

ii) SRK is being restrained and the conditions in s 6 and 16 of the MCA are not satisfied and so the protection conferred by s. 5 and the deputy's authority do not apply (the "restraint reason").

In those circumstances the MCA regime provides that a welfare order should be made by the COP and as a result that the COP should make the relevant decisions on behalf of P (see s. 16(2)(a)).

The restraint reason was not raised before me. It has not been advanced as a reason why a welfare order is necessary and I proceed on the basis that it is not. It may be relevant in other cases.

As appears below, I am of the view that the MCA definition of when a person is being deprived of his liberty means that the State must be responsible for his deprivation of liberty within Article 5 and so that he is the subject of an Article 5 Deprivation of Liberty.

State responsibility by direct involvement. In my view, in agreement with the conclusion reached by Munby J in Re A and Re C and the approach taken by the ECtHR in Storck, the steps relied on in argument, and so the steps taken by the Applicant Council and the CQC, do not amount to direct involvement that makes the State responsible for SRK's (private) deprivation of liberty within Article 5. Such steps are part of the supervision and regulation of private providers of care and do not found a sufficient direct participation by the State as a decision maker, provider or otherwise in the creation and implementation of SRK's (private) deprivation of liberty within Article 5.

As did Munby J, I consider that the application for a welfare order does not have that effect because if at the date of the application the State was not responsible for SRK's deprivation of liberty and so it is not an Article 5 Deprivation of Liberty (and so in my view a deprivation of liberty as defined by the MCA) the COP can refuse to make any order on that application.

On the same basis. I consider that the involvement (a) of the court that awarded the damages, (b) of the COP in respect of the appointment and the giving of directions to the deputy (IMTC) and (c) of the deputy do not make the State responsible for SRK's deprivation of liberty and so make it an Article 5 Deprivation of Liberty. I acknowledge that a court appointed deputy is making the decisions on the funding of SRK's regime of care and treatment and that it can be said that as a result he or the COP (as the public authority that appoints him and gives him authority to make decisions on behalf of P) becomes directly involved in it. But, in my view:

i) this is academic if under the MCA regime there is a requirement for SRK's (private) deprivation of liberty within Article 5 to be authorised by the COP, and

ii) if there is no such requirement, the appointment, supervision and decisions of the deputy fulfil the important underlying aim of the MCA to enable decisions to be made on the ground about the care and treatment of P without involving the COP, or the State in other forms, and so they should not trigger direct State involvement.

Knowledge of the State and the triggering of its positive obligations under the regime of law, supervision and regulation. In my view, 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.

That knowledge of the courts means that the State has that knowledge (or cannot successfully say that it does not).

In paragraphs 56 to 59 above I have set out my conclusions on what a deputy with that knowledge should do and its consequences. As appears therefrom, those conclusions are based on the consideration and exercise of the best interests test and, in my view, for effectively the same reasons the court awarding the damages, the COP and trustees or an attorney to whom damages are paid should also ensure that such steps are taken.

This approach means that 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).

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.

So, if as argued by the Secretary of State and contrary to my view, 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) only arise if the notification of a (private) deprivation of liberty within Article 5 obviously gives rise to cause for concern) this would strengthen the argument that the third component of an Article Deprivation of Liberty was satisfied.

State responsibility based on a violation of Article 5. In my view, the key issue is whether the "Bournewood gap" is 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 (P'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.

The essential differences between that regime and one under which such deprivations of liberty within Article 5 had to be authorised by the COP are that an application to and the making of a welfare order by the COP:

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.

In Cheshire West at paragraph 57 Baroness Hale indicated that the Supreme Court was erring on the side of caution and that the periodic independent checks that were required need not be as elaborate as those currently provided by the COP and the DOLS. But she does not indicate how less elaborate they could be and thus the nature of the simplification she stated could occur.

Returning to HL v United Kingdom it seems to me that the central issue in this case is 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.

Absent an application to the COP, if they act properly:

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.

Further, the decision makers, family member and those public authorities would have the ability to apply to the COP for a welfare order.

Is that 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?

I have concluded that it is not in cases within the class represented by SRK's case where the envisaged and actual application of a damages award creates a (private) deprivation of liberty within Article 5. This has the result that a failure to make a welfare order in such case would, on the backwards looking approach taken by the ECtHR, 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.

I have reached this conclusion 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.

But, in my view, the cautious approach taken in Cheshire West, and the points that:

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 Ps 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.

On the last point have I considered whether a regular (annual) review could be substituted by one initiated by the deputy, the family or the local authority but have 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.

The construction of the MCA definition of a deprivation of liberty. Counsel for SRK in his written submissions argued that the meaning of the definition of a deprivation of liberty in ss. 64(5) and (6) of the MCA is that it refers only to the objective and subjective components of a deprivation of liberty. This would be an alternative and domestic route to the conclusion I have reached. However, the construction argument introduces s. 3 of the HRA and so the need to consider whether, absent such an interpretation, the underlying purpose and spirit of Article 5 would not be served. This argument would have close links to the argument that, as a matter of policy, SRK's deprivation of liberty should be deemed or treated as an Article 5 Deprivation of Liberty and so within the MCA definition.

It was argued that the only plausible interpretation of s. 64(6) was that a person is deprived of his liberty for the purposes of the MCA if and when only the objective and subjective components described by Baroness Hale exist. It was said that this was logical because it is in accordance with (a) the permissive way in which the MCA operates by enabling decisions to be made in respect of the day to day living of P by a number of people, and (b) the positive obligations of the local authority identified by Munby J in Re A and Re C.

I agree with the Secretary of State that this argument is wrong and so in my view the MCA definition of references to a deprivation of liberty is to an Article 5 Deprivation of Liberty. My conclusion that the third component described by Baroness Hale of State responsibility will exist in this case (and cases in the same class) if a welfare order is not made by the COP means that s. 3 of the HRA does not found a different result.

In my 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. Rather, in my view, the natural meaning of the language of s. 64(6) read with the definition of the Human Rights Convention by reference to the HRA, which unlike Article 5 refers to public authorities, is to make it clear that the cross reference to the HRA does not mean that the deprivation of liberty has to be by a public authority.

I agree with the Secretary of State that:

i) if there had been any intention that s. 64(5) was to be in anyway subject to s. 64(6), or that s. 64(6) was intended to qualify the meaning of an Article 5 Deprivation of Liberty this would have been stated expressly,

ii) s. 64(5) makes it clear that Parliament chose to import the ECHR and so the Article 5 meaning of a deprivation of liberty, as described by Baroness Hale in paragraph 37 of her judgment in Cheshire West (cited above) into the MCA,

iii) to engage that Article 5 meaning all three of the components referred to by Baroness Hale have to exist,

iv) within that meaning is the possibility that the deprivation of liberty can be by a public or private person, and

v) s. 64(6) simply confirms that, as is the case with an Article 5 Deprivation of Liberty, the MCA definition applies in every case whether the alleged deprivation of liberty is by a public or private person.

In my view, this construction (a) accords with the conclusion in paragraph 78 of Storck that a private deprivation of liberty is a deprivation of liberty within the meaning of Article 5 before the ECtHR went on to consider whether Article 5 rights were engaged, and (b) is supported by the point that the relevant sections were introduced by the Mental Health Act 2007 to address the "Bournewood gap" which related to an Article 5 Deprivation of Liberty because of the direct involvement of the State.

It follows, and my approach to whether the third component of State responsibility exists is founded on the view, that:

i) what s. 5 of the MCA does not authorise is an Article 5 Deprivation of Liberty, and

ii) what needs to be authorised by a welfare order made under the MCA is an Article 5 Deprivation of Liberty.

SCHEDULE

PART 1

Sections 1, 4, 4A, 5, 6, 16, 18, 21A and 64(5) and (6) of the MCA provide:

1 The principles

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

(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"

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

(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,

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

This sectionnoteType=Explanatory Notes has no associated

A 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 treatment

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) 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

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.

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

(1) A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter.

(2) Nothing in section 16(5) or 17 permits a deputy to be given power—

(a) to prohibit a named person from having contact with P;

(b) to direct a person responsible for P's health care to allow a different person to take over that responsibility.

(6) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests).

(7) A deputy may not do an act that is intended to restrain P unless four conditions are satisfied.

(8) The first condition is that, in doing the act, the deputy is acting within the scope of an authority expressly conferred on him by the court.

(9) The second is that P lacks, or the deputy reasonably believes that P lacks, capacity in relation to the matter in question.

(10) The third is that the deputy reasonably believes that it is necessary to do the act in order to prevent harm to P.

(11) The fourth is that the act is a proportionate response to—

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

(b) the seriousness of that harm.

(12) For the purposes of this section, a deputy 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,

or if he authorises another person to do any of those things

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;

(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

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.

PART 2

Extracts for the judgment of the ECtHR in Storck v Germany

a. Involvement of public authorities in the applicant's detention

90. The Court observes that it is not disputed between the parties that the applicant's confinement to the private clinic in Bremen had not been authorized by a court or any other State entity. Likewise, at least at the relevant time, there was no system providing for supervision by State authorities of the lawfulness and conditions of confinement of persons being treated in the said clinic.

91. However, the Court notes that on 4 March 1979 the police, by use of force, had brought the applicant back to the clinic from which she had fled. Thereby, public authorities became actively involved in the applicant's placement in the clinic. The Court observes that there is no indication that the applicant's express objection to returning to the clinic had led to any control on the part of the police or any other public authority of the lawfulness of the applicant's confinement to a private hospital. Therefore, even though State authorities caused the applicant's detention in the clinic only towards the end of her placement, this engaged their responsibility, as her confinement had otherwise ended on that date.

b. Failure to interpret the national law in the spirit of Article 5

92. In the present case, the applicant claimed that her rights under Article 5 § 1 of the Convention had been violated in that the Bremen Court of Appeal, in the compensation proceedings brought by her, failed to interpret the provisions of civil law relating to her claim in the spirit of that Article. In this respect, her complaint is closely linked both to the question whether the State had complied with possible positive obligations under Article 5 § 1 (see paragraphs 100-108 below), and to the question whether the applicant had had a fair trial within the meaning of Article 6 § 1 of the Convention (see paragraphs 130-136 below).

93. -------- In securing the rights protected by the Convention, the Contracting States, notably their courts, are obliged to apply the provisions of national law in the spirit of those rights. Failure to do so can amount to a violation of the Convention Article in question, which is imputable to the State. In this respect, the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective -------

96. Having regard to this, the Court considers that the Court of Appeal, in its interpretation of the provisions on the period of limitation, did not have sufficient regard to the right to liberty laid down in Article 5 § 1 of the Convention. In particular, that court did not consider the applicant's situation while being detained, in which she had in reality been incapable of bringing an action in court. -------------

97. Secondly, the interpretation adopted by the Bremen Court of Appeal concerning the applicant's contractual claims for damages warrants examination of its compliance with the spirit of Article 5. -------------- Assuming the applicant's capacity to consent, there is no factual basis whatsoever for the assumption that the applicant, who had clearly opposed to her stay and had tried to flee on several occasions, had consented to her stay and treatment in the clinic, thereby implicitly concluding a contract. If the applicant, in the alternative, had not been capable of consenting following her immediate treatment with strong medicaments, she could, in any event, not be considered as having validly concluded a contract. -------

98. Consequently, the Court of Appeal's finding that, under these circumstances, there had been a contractual relationship by which the applicant had authorized her stay and treatment in the clinic must be considered as arbitrary. The Court of Appeal cannot, therefore, be considered as having applied the national provisions of civil law designed to afford protection of the right to liberty safeguarded by Article 5 § 1 in the spirit of that right. ----------

c. Compliance with positive obligations on the State

100. The Court considers that the special circumstances of the applicant's case also warrant an examination of the question whether her detention is imputable to the respondent State because the latter has violated a positive obligation to protect the applicant against interferences with her liberty as carried out by private persons.

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 Article 1 to secure those rights and freedoms in its domestic law to everyone within its jurisdiction --------------

102. Having regard to this, the Court considers that Article 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 Articles 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. -----------------.

103. ------------------ there are hospitals run by the State which coexist with private hospitals. The State cannot completely absolve itself from its responsibility by delegating its obligations in this sphere to private bodies or individuals. --------------- The Court finds that, similarly, in the present case the State remained under a duty to exercise supervision and control over private psychiatric institutions. These institutions, in particular those where persons are held without a court order, need not only a licence, but a competent supervision on a regular basis of the justification of the confinement and medical treatment.

104. Turning to the present case, the Court notes that, under German law, the confinement of a person to a psychiatric hospital had to be ordered by a judge if the person concerned either did not or was unable to consent. In this case, the competent health authority also had supervisory powers to control the execution of these court orders. However, in the applicant's case, the clinic, despite the lack of the applicant's consent, had not obtained the necessary court order. Therefore, no public health officer had ever assessed whether the applicant – what was more than doubtful – posed a serious threat to public safety or order within the meaning of Article 2 of the Act of the Land Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts. Consequently, the State also did not exercise any supervisory control over the lawfulness of the applicant's detention in the clinic for some 20 months.

105. It is true, though, that, with deprivation of liberty being a crime punishable with up to ten years' imprisonment, German law retrospectively provided sanctions with a deterring effect. Moreover, a victim could, under German civil law, claim compensation in tort for damage caused by an unlawful detention. However, the Court, having regard to the importance of the right to liberty, does not consider such retrospective measures alone as providing effective protection for individuals in such a vulnerable position as the applicant. It notes that particularly in the Act of the Land Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts, there were numerous – necessary – safeguards for persons detained in a mental institution following a court order. However, these safeguards did not apply in the more critical cases of persons confined to a psychiatric institution without such an order. It must be borne in mind that the applicant, once detained and treated with strong antipsychotic medicaments, had no longer been in a position to secure independent outside help.

106. The lack of any effective State control is most strikingly shown by the fact that on 4 March 1979 the police, by the use of force, had brought back the applicant to her place of detention from which she had escaped. Thereby, public authorities, as already shown above, had been involved in the applicant's detention in the clinic, without her flight and obvious unwillingness to return having entailed any control of the lawfulness of her forced stay in the clinic. This discloses the great danger of abuse in this field, notably in cases like that of the applicant, in which family conflicts and an identity crisis had been at the root of her troubles and long detention in a psychiatric hospital. The Court is therefore not convinced that the control exercised by State authorities merely in connection with the issuing of a licence for the conduct of a private clinic pursuant to Section 30 of the Act regulating the Conduct of Trade sufficed to ensure a competent and regular supervisory control against a deprivation of liberty in such a clinic. Moreover, Section 30 of the Act regulating the Conduct of Trade as such had not been in force at the beginning of the applicant's detention in the clinic.

107. The Court observes that shortly after the end of the applicant's detention in the private clinic, further safeguards have been introduced by Section 34 of the Act on Measures of Aid and Protection with respect to Mental Disorders for individuals detained in psychiatric institutions, responding to the lack of sufficient protection in this field. In particular, visiting commissions were created to inspect psychiatric institutions, to control whether the rights of patients were respected and to give patients the opportunity to raise complaints. However, these mechanisms came too late for the applicant.

108. Therefore, the Court concludes that the respondent State has violated its existing positive obligation to protect the applicant against interferences with her liberty carried out by private persons from July 1977 to April 1979. Consequently, there has been a violation of Article 5 § 1, first sentence, of the Convention.

Extracts for the judgment of Munby J in Re A and Re C

Again bolstering his submissions by extensive reference to the Strasbourg case-law, Mr Bowen submits that the positive obligations which have been developed under the Convention are of various and overlapping kinds, including the following:

i) First, an obligation to put in place a legislative and administrative framework designed to provide effective deterrence against conduct that would infringe the relevant Convention right, a positive obligation which he demonstrates has been implied under a number of Articles, including Article 5: see Storck v Germany (2005) 43 EHRR 96 at paras [103]-[107] and [149]-[152].

ii) Second, an obligation to establish an effective independent judicial system so that responsibility for conduct infringing Convention rights may be determined and those responsible made accountable, an obligation which again arises under Article 5: see Storck v Germany (2005) 43 EHRR 96 at paras [92]-[99]. As the court said at para [93]:

"In securing the rights protected by the Convention, the Contracting States, notably their courts, are obliged to apply the provisions of national law in the spirit of those rights. Failure to do so can amount to a violation of the Convention Article in question, which is imputable to the State. In this respect, the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective."

iii) Third, an obligation to carry out an effective investigation into credible claims that serious violations of Convention rights have occurred, in particular where the State may bear responsibility. However, the obligation is not, says Mr Bowen, limited solely to acts or omissions of State agents, for which proposition Mr Bowen relies upon various authorities including, in relation to Article 5, Kurt v Turkey (1999) 27 EHRR 373.

iv) Fourth, an obligation in "certain well-defined circumstances" to take operational measures to protect an individual from the acts of third parties, that is, non-State agents, which would, if carried out by the State, constitute a violation of the Convention: see Osman v United Kingdom (2000) 29 EHRR 245. Again, in the context of Article 5, Mr Bowen points to Storck v Germany (2005) 43 EHRR 96, where, as we have seen, the Court ruled (at para [102]) that the State owes a positive obligation "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."

v) Fifth, an obligation to provide information and advice to individuals who are or may be at risk of a violation of their Convention rights: see Guerra v Italy (1998) 26 EHRR 357 and Oneryildiz v Turkey (2004) 39 EHRR 12 at para [90]. Mr Bowen submits that this obligation may be understood as one which thereby enables the individual either to avoid the risk or, if exposed to it, to take steps to mitigate its effects and/or to seek a remedy if thereby harmed.

vi) Sixth, and in order to prevent unlawful discrimination, an obligation which is violated when the State, without an objective and reasonable justification, treats differently persons whose situations are the same or fails to treat differently persons whose situations are significantly different: see Pretty v United Kingdom (2002) 35 EHRR 1 at para [88]. Mr Bowen submits that this duty may arise where a measure – or a failure to adopt a measure – has disproportionately prejudicial effects on a particular group with a protected 'status' for the purposes of Article 14 (see Adami v Malta [GC] (2007) 44 EHRR 3 at para [80]), in which circumstances the State may come under an obligation to take positive measures to remedy the inequality.

At the end of the day, the question with which I am here concerned is whether, if there is any deprivation of liberty in these cases, that is something for which the State – the local authority – is responsible. It is in that context that, as I readily accept, I need to explore the ambit of the positive obligations attaching to local authorities by virtue of Article 5. But it is not necessary for me to embark upon any more general analysis of the possible reach of Article 5, and it is in fact undesirable that I do so. That exercise raises issues which are not before me and which are properly to be explored as and when the occasion arises. Moreover, it is not the function of judges to draft practice manuals for public authorities. Mr Bowen will, I trust, forgive me if I therefore take matters quite shortly.

For present purposes I can summarise my conclusions as follows. Where the State – here, a local authority – knows or ought to know that a vulnerable child or adult is subject to restrictions on their liberty by a private individual that arguably give rise to a deprivation of liberty, then its positive obligations under Article 5 will be triggered.

i) These will include the duty to investigate, so as to determine whether there is, in fact, a deprivation of liberty. In this context the local authority will need to consider all the factors relevant to the objective and subjective elements referred to in paragraph [48] above.

ii) If, having carried out its investigation, the local authority is satisfied that the objective element is not present, so there is no deprivation of liberty, the local authority will have discharged its immediate obligations. However, its positive obligations may in an appropriate case require the local authority to continue to monitor the situation in the event that circumstances should change.

iii) If, however, the local authority concludes that the measures imposed do or may constitute a deprivation of liberty, then it will be under a positive obligation, both under Article 5 alone and taken together with Article 14, to take reasonable and proportionate measures to bring that state of affairs to an end. What is reasonable and proportionate in the circumstances will, of course, depend upon the context, but it might for example, Mr Bowen suggests, require the local authority to exercise its statutory powers and duties so as to provide support services for the carers that will enable inappropriate restrictions to be ended, or at least minimised.

iv) If, however, there are no reasonable measures that the local authority can take to bring the deprivation of liberty to an end, or if the measures it proposes are objected to by the individual or his family, then it may be necessary for the local authority to seek the assistance of the court in determining whether there is, in fact, a deprivation of liberty and, if there is, obtaining authorisation for its continuance.

What emerges from this is that, whatever the extent of a local authority's positive obligations under Article 5, its duties, and more important its powers, are limited. In essence, its duties are threefold: a duty in appropriate circumstances to investigate; a duty in appropriate circumstances to provide supporting services; and a duty in appropriate circumstances to refer the matter to the court. But, and this is a key message, whatever the positive obligations of a local authority under Article 5 may be, they do not clothe it with any power to regulate, control, compel, restrain, confine or coerce. A local authority which seeks to do so must either point to specific statutory authority for what it is doing – and, as I have pointed out, such statutory powers are, by and large, lacking in cases such as this – or obtain the appropriate sanction of the court. Of course if there is immediate threat to life or limb a local authority will be justified in taking protective (including compulsory) steps: R (G) v Nottingham City Council [2008] EWHC 152 (Admin), [2008] 1 FLR 1660, at para [21]. But it must follow up any such intervention with an immediate application to the court.

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-----------. In the first place, it is vital that local authorities embark upon the kind of investigations that Hedley J and I have described with sensitivity and with a proper appreciation of the limited extent of their powers. Social workers need to keep their eyes open and their professional antennae alert when meeting or visiting their clients. And if there is real cause for concern they must act quickly and decisively. But they must guard against being seen as prying or snooping on the families who they are there to help and support. -----------.

Article 5: Is the State responsible?

I turn, therefore, to the question of whether, on the facts of these two cases, Article 5 is engaged and, first, to the question of whether, if there is any deprivation of liberty here, it is imputable to the State in such a way as to make the State responsible.

To engage Article 5 a deprivation of liberty must be imputable to the State. In other words, and in particular where, as here, what is said to be a deprivation of liberty is seemingly being effected by a private individual (and the same applies if it is being effected by a private institution) it is necessary to show that the State is responsible. Referring to Storck v Germany (2005) 43 EHRR 96 at para [89], Mr Bowen submits, and I agree, that this may happen in one of three ways:

i) First, by the "direct involvement" of public authorities in the person's deprivation of liberty. If it takes place in a hospital or care home that is run by a public authority then the State will be directly involved. But even where the place of detention is privately owned, the State may be, or become, directly involved in the deprivation of liberty. I shall return to this topic below.

ii) Secondly, the State can violate Article 5(1) if its courts, in domestic proceedings brought by a detainee, fail to interpret the provisions of domestic law in the spirit of Article 5. I have dealt with this already. And although it may affect my responsibilities it plainly cannot affect the local authority.

iii) Thirdly, the State can violate its positive obligations to protect the detainee against interferences with his liberty carried out by private persons. As we have seen, the State owes a number of positive obligations under Article 5 to protect individuals from arbitrary interferences with their right to liberty, whether by state agents or by private individuals. I have dealt with this already. There is, in my judgment, no basis for attributing to the local authority here any failure in its performance of whatever positive obligations it may have had. It has investigated and, appropriately, brought the matter to the attention of the court.