Staffordshire County Council v SRK & Anor  EWCOP 27 SRK
SUMMARY: An extremely complex judgement which examines in depth the issue of imputability to the state of a deprivation of liberty in the circumstances of a damages award being administered by a deputy. It was held that it is necessary for a welfare order to be sought from the CoP to authorise a Deprivation of Liberty in circumstances where the care arrangements are put in place by a Deputy administering an award of personal injury damages.
In circumstances in which a privately funded care package in the client’s own home amounted to an objective deprivation of liberty, a deprivation of liberty imputable to the state (and thus an Article 5 Deprivation of Liberty) would exist if the CoP did not make a welfare order. The involvement through decisions of the courts in creating the circumstances in which the DoL arose and the consequent state knowledge that a private objective deprivation of liberty was occurring triggered the positive obligation under Article 5 and a welfare order was then necessary in order to prevent a ‘Bournewood’ gap where insufficient procedural safeguards existed to guard against arbitrary detention.
FACTS: The case concerned SRK who had been severely injured in a road traffic accident and had been awarded compensation which had funded the purchase of an adapted property and ongoing care from private providers. All parties agreed that the circumstances of his care met the elements of the Cheshire West definition concerned with continuous or complete supervision and control and not being free to leave; that SRK lacked capacity to consent; and that the care being provided was the least restrictive option available.
Thus the only issue was whether the third component of a Deprivation of Liberty under Article 5(1) that of the attribution of responsibility to the state (Storck v Germany 2005) was met in this (and similar) cases.
THE JUDGEMENT: In considering the issue, Charles J referred to the reasoning of the ECtHR in Storck which set out:
“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.” (Quoted in para 18, emphasis added)
In this case, the state had knowledge (through the court process) SRK’s damages. “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” (para 83)
In itself, that knowledge merely required the state to investigate through the safeguarding processes of the local authority and consider whether a deprivation of liberty was occurring and, if so, whether any action was necessary (as in Re A & Re C ).
However, if an objective deprivation of liberty (that is the first two components) was found to be occurring, then it needed to be considered whether a lawful mechanism existed to prevent a breach of Article 5 rights: “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” (para 26).
Charles J helpfully sets out the stages in this reasoning:
“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.” (para 29-32)
If the state had merely investigated a potential DoL, considered whether less restrictive options could be achieved and applied to the CoP for a welfare order in order to fulfil the state’s positive obligations under Article 5 and CQC had been responsible for regulating the care provider – this would not be enough for the DoL of liberty to be imputable to the state (Munby J in Re A and Re C).
However, in this case, “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.” (para. 83)
Thus, in this case (and others in this class), the courts (and thus the state) were instrumental in deciding how much money was required for SRK’s care and in appointing the Deputy with responsibility for administering SRK’s financial affairs including organising and paying for his care.
Therefore, by reason of the positive obligations and the lack of an alternative means other than a welfare order of the CoP to bridge the Bournewood gap and prevent a breach of Article 5, it was necessary for the CoP to authorise the Deprivation of Liberty by means of a welfare order in order to render it lawful and prevent a breach of Article 5.
Charles J sets out the essential difference thus: “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 state’s positive obligation under Article 5 is to protect the individual from arbitrary detention carried out by private persons. Where that detention is entirely and wholly private (as in Re A and Re C), then investigating and seeking review of that detention by the CoP will be sufficient to fulfil this obligation without an Article 5 DoL existing (even though an objective DoL does exist) due to the lack of imputability to the state. However, where that detention has been facilitated or brought about in part by actions of the state (as in this case), then the criterion of imputability to the state renders the circumstances an Article 5 DoL and it must be authorised by the CoP issuing a welfare order.
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.
ANALYSIS: The judgement includes some useful commentary as to the broader reasons behind the decision. Charles J recognised that, in this case, where SRK had family members actively involved in securing his welfare: “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.”. But he considered what the situation might be if this were not the case and 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).
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.
Despite Charles J’s agreement with many elements of the (pre-Cheshire West) Re A & Re C judgement, 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 a dol imputable to the state and thus a DOL, by means of the positive obligation ensuring that the state is required to render the detention reviewable and subject to the courts by means of obtaining a welfare order (which then makes the state responsible for the DoL).
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 this 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 .