As those working in social care will know, care providers and councils are already overwhelmed and struggling to ensure lawful authorisation of all care situations involving Deprivations of Liberty following the broadening of the definition of ‘Deprivation of Liberty’ by the decision of the Supreme Court in Cheshire West. The current situation is so bad that four councils are seeking a judicial review of Government funding for DoLS.
The Cheshire West decision was important and revolutionary for disability equality, establishing that disabled people are entitled to the same rights as everyone else and should not have their liberty infringed without careful, independent review and legal recourse, no matter how ‘normal’ and pleasant the circumstances of their care. Legally speaking (Storck 43 EHRR 96) there are 3 components which are required for a situation to require formal legal authorisation in order to comply with Article 5 ECHR. These are: (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.
In situations involving those who lack capacity to consent, requirement (b) is satisfied. Cheshire West widened the scope of situations which now meet (a). And now, in a recent case, the scope of (c) has been called into question.
In Staffordshire County Council v SRK & Anor[2016], Mr. Justice Charles considered whether, when someone’s liberty is removed in the course of a privately funded care package in the client’s own home (in circumstances which met the criteria for (a) and (b)) the Deprivation of Liberty is imputable to the state. The full judgement is extremely complex and examines the issue in depth. For practitioners and councils, the important information is that he concluded that, under certain circumstances such “private” situations are imputable to the state. This means that providers should be informing councils of the situation and either or both of the provider or the council should be applying to the Court of Protection for a welfare order.
In this case it was held that the involvement of the courts in awarding Personal Injury damages and the Court of Protection itself in appointing a deputy to administer those damages was a sufficiently active form of state involvement to create a responsibility on the state (through its positive duty to seek to uphold the Right to Liberty) to require the state to seek legal authority for the detention.
He clearly indicated that this judgement would apply to all future cases in this class and that future personal injury damages awards should take account of the additional costs involved in seeking Welfare Orders in similar cases.
In coming to this conclusion, he pointed out that “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.” (paras 71 & 72) and, therefore, it falls to the state to ensure that the rights of the individual are protected.
This case widens still further the circumstances under which a deprivation of liberty is imputable to the state and, thus, outside of a Care Home or Hospital, requires authorisation by the Court of Protection. Estimates contained in the judgement suggest that the result will be at least an additional 250-300 cases requiring welfare orders.
However, this is unlikely to be an end to knock-on consequences of the application of the Cheshire West decision in practice.
In pre-Cheshire West case law, Re A and Re C [2010] EWHC 978 (Fam) 64, it had been established that care circumstances created by a family within their own home were not imputable to the state. However, it is difficult to see how this case does not raise the possibility or even probability that the ultimate result in an equivalent case might now be different. The continuing application of Cheshire West in practice seems destined to reduce to the level of mere awareness the role of the state which is sufficient to render objective circumstances which deprive someone of their liberty imputable to the state and thus a potential breach of Article 5 which can only be remedied by means of formal legal authorisation (the only option for which is currently by means of a welfare order from the Court of Protection for situations which fall outside of the DoLS framework).
According to one strand of Charles J’s reasoning in this judgement, mere knowledge through safeguarding and/or regulatory processes is not sufficient to render an objective deprivation of liberty imputable to the state and thus an Article 5 Deprivation of Liberty. However, if we follow the other strand of reasoning, that of the Bournewood gap, it is difficult to see how arbitrary detention can be protected against in cases where mere awareness is the limit of state involvement, and thus there is at least the potential for a future ruling that, as a result of the widened definition of deprivation of liberty created by Cheshire West, the positive obligation under Article 5 requires the state to provide a domestic regime of law, supervision and regulation to authorise even entirely private deprivation of liberty situations such as that in Re A & Re C [2010].
Councils and care providers would, therefore, be well advised to err on the side of caution and avoid assuming that they do not have to take steps to seek legal authorisation of a deprivation of liberty in even the most apparently “private” of circumstances once they are aware of their existence. Under the current circumstances of a massively overstretched system, this will not be immediately welcome news. However, the fundamental principle that all detention of those who lack the capacity to consent should be subject to independent scrutiny and review is very much to be welcomed. It can only be hoped that additional cases will add further to the pressure to resolve the current legislative and funding provisions to catch up to the modernisation of the law in this area by the courts.
Update
The recent appeal against Charles J's judgement by the Secretary of State for Justice, Secretary of State for Justice v Staffordshire County Council & Anor [2016], was dismissed. The Court of Appeal unanimously upheld the judgement, confirming that, for situations which fall outside of the current DOLS arrangements, even where the deprivation of liberty is not directly imputable to the state, a welfare order from the Court of Protection will be necessary to fulfill the positive obligation of the State under Article 5(1) to take reasonable steps to prevent arbitrary deprivation of liberty. The appeal confirmed that other social care frameworks such as CQC inspection and Safeguarding Responsibilities are insufficient to fulfil this responsibility.