Nageena Khalique QC appears on behalf of Staffordshire County Council in State Imputability Case

Tue, 24 May 2016

Introduction:

1.     SRK was severely injured in a road traffic accident in 2005 such that lacked capacity to make decisions about his care and treatment. A significant award of damages was made by the Queen’s Bench Division, enabling SRK’s property and affairs deputy to buy an adapted property for SRK and to fund a private package of care.

2.     All parties agreed that SRK’s care regime created, on an objective assessment, a deprivation of liberty, in that SRK was confined to a particular place for a not negligible length of time, he was constantly monitored, and he did not have capacity to consent to this. The parties also agreed that SRK’s current package of care was in his best interests and was the least restrictive option.

The issues

3.     The issue was whether SRK’s circumstances amounted to an ‘Article 5 deprivation of liberty’ which required authorisation by the Court of Protection. At paragraph 5 of his judgment, Charles J cited Cheshire West at [37] where 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. [i.e. state Imputability]

The approach of the parties

4.     The parties, other than the Secretary of State for Justice (“SSJ”), argued that there was a line of domestic and Strasbourg authorities which suggested that that all three components apply to SRK’s care regime and therefore there can be state imputability, and an Article 5 deprivation of liberty, in cases involving private care arrangements.

5.     The SSJ argued that the third component of a deprivation of liberty, that being state imputability, did not apply to SRK’s care regime and so it can lawfully be put into place in reliance on the Mental Capacity Act 2005 (“the MCA”) without a welfare order. [7] It argued that the domestic regime of law, supervision and regulation of a deprivation of liberty within Article 5 satisfies the positive obligations of the State, and that the existence and performance of this regime does not mean, in itself, that the State is responsible for all deprivations of liberty. [96]

The court’s view

6.     Charles J concluded that a welfare order (pursuant to s16 of the Mental Capacity Act 2005) was needed, and agreed with the local authority and other parties that the third component is satisfied.  The critical issue was whether, absent the making of a welfare order by the Court of Protection in cases within the class represented by SRK’s case, the amendments to the MCA directed to filling the “Bournewood gap” achieved that purpose in those cases. He confirmed at [5] that “In my view, it would not do so”.

7.     He concluded that in such cases, authorisation by the Court of Protection is required 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 in the spirit of Article 5”. [10]

8.     This positive obligation, the court decided, is triggered by the State’s knowledge of the concrete  situation “on the ground”. This knowledge arises as a result of:

a.     the court awarding damages

b.     the Court of Protection when appointing a deputy and/or

c.     the trustees to whom damages are paid

knowing that the regime of care and treatment creates a private deprivation of liberty within Article 5. That knowledge of the courts, means that the State cannot successfully say that it does not have knowledge. [135]

9.     Notwithstanding the performance of the local authority in investigating and monitoring a situation on the ground of which it becomes aware, the failure to make a welfare order would be a violation of the positive obligations imposed on the State by Article 5, and that violation would itself trigger State responsibility for the deprivation of liberty. [145]

The impact of this case

10.  This decision is likely to have a significant impact on practice in the Court of Protection. It imposes further obligations on local authorities, financial deputies, and the court itself.

11.  Charles J stated that he had reached this conclusion with “real reluctance” as it seems as though, in many cases such as this, a further independent check by the Court of Protection will add nothing other than “unnecessary expense and diversion of private and public resources which would be better focussed elsewhere". [146].

12.  He did acknowledge however that an application to the Court of Protection will introduce an independent decision maker who will have to be satisfied that P’s voice is properly before the court [140].

13.  It will also ensure that there is no failure by public authorities and others to perform their obligations under the domestic regime of law. [59]

Welfare Orders and Re X procedure

14.  Charles J also considered the consequential increase in applications to the Court of Protection. Figures provided to the court by Irwin Mitchell Trust Corporation suggest that there are between 250 and 300 similar cases across the country, although this does not include cases managed by a lay deputy, trustees or an attorney [75].

15.  These cases will now require a welfare order to be made by the Court of Protection, although Charles J stated that where a deputy and a local authority have properly examined the issues, and where their conclusion is supported by the family, then a streamlined, paper procedure (Re X) for the making of the initial welfare order and paper reviews is likely to be appropriate. [147]

The role of a financial deputy

16.  At paragraphs [56] – [59] of his judgment, Charles J set out the steps now required of a deputy in cases such as this. A deputy should raise the issue of the deprivation of liberty with the relevant local authority.

17.  By doing so he would be taking “proper steps” to check whether 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…”.

18.  Where the deprivation of liberty remains, the deputy should then ensure that the situation is authorised by the making of a welfare order, and that is kept under review by the relevant decision makers on the ground. [59]

19.  Charles J has also imposed an obligation on the court that awarded the damages, and the Court of Protection when appointing a deputy, to take steps to ensure that the relevant local authority knows of the regime. It is also likely that this decision will have wider implications on personal injury practice, as Mr Justice Charles concluded that the need for a welfare order should be factored into the calculation of damages awards in the future. [10]

Nageena Khalique QC, Head of Public Law and Court of Protection at No5 Chambers, appeared on behalf of the Applicant local authority.

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