Secretary of State for Justice v Staffordshire County Council & Anor [2016]

Secretary of State for Justice v Staffordshire County Council & Anor [2016]

Keywords: DoL, State Imputability

In the sequel to Staffordshire County Council v SRK & Anor [2016], the Court of Appeal has unanimously upheld Charles J’s ruling that a positive obligation under Article 5 is triggered by state involvement in an otherwise private Deprivation of Liberty. In the original judgement, Charles J held that, even where the state has no direct involvement in creating the circumstances of a detention, the state may nevertheless have a positive obligation to secure the individual’s rights under Article 5 where the domestic system of law, supervision and regulation of a (private) deprivation of liberty, and its application in a given case does not provide practical and effective substantive and procedural safeguards against the arbitrary deprivation of liberty of the relevant person without that DoL being authorised by the CoP issuing a welfare order.

The Secretary of State for Justice had appealed that decision on the grounds that:

  1. The existing framework of civil and criminal law combined with the safeguarding duties of local authorities and other public bodies were sufficient to protect vulnerable individuals and nothing else was required
  2. A “private” deprivation of liberty could not be imputable to the state where all involved agreed that the arrangements were in SRK’s best interests and there were no concerns about abuse or failures in the care provided.

The first ground of appeal was dismissed. Sir Terence Etherton MR, pointing to the conclusions of the ECtHR in Storck, reasoned that “Save where there are already proceedings in the CoP (when the functions of the Public Guardian will be engaged), the current domestic regime depends on people reporting something is wrong, and even then it will only be a notification of grounds for concern at that specific moment in time. That may be particularly problematic in cases where no parents or other family members are involved in the care and treatment. It does not meet the obligation of the State under Article 5(1) to take reasonable steps to prevent arbitrary deprivation of liberty.” (para. 74)

The second ground of appeal was dismissed with judicial succinctness as totally unsupported by the case law on Article 5, which is entirely clear that the purpose of Article 5(1) is protect individuals against arbitrary deprivations of liberty and that this includes circumstances in which the care and arrangements are of good quality and in P’s best interests. Sir Terence Etherton MR summarised: “There is nothing in the jurisprudence to support such an argument.”  (para. 83)

The decision confirms the broad reach of the state’s positive obligation under article 5 and, therefore, at least for the foreseeable future prior to some radical reworking of the DOLS system that might extend to more community-based circumstances, that a welfare order should be sought from the Court of Protection in most, if not all, “private” circumstances.

Where a PI award involves the appointment of a deputy for an incapacitated individual, then the court(s) involved should notify the local authority of P’s circumstances and the local authority will then need to seek a welfare order from CoP. Where all involved are in agreement with the circumstances of care, then it is likely to be appropriate to make an application under the re X procedure. The costs of seeking a welfare order should be factored into future awards of PI damages.

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