Secretary of State for Justice v Staffordshire County Council & Ors (Rev 1)

Where a person who lacks capacity is confined in private accommodation under a private care regime, the State’s Article 5(1) responsibility is not excluded because no public authority arranged or delivered the care. If the authorities know or ought to know of the deprivation, they must take reasonable and effective steps to prevent arbitrariness. A reactive regime of provider regulation, safeguarding duties, professional responsibilities and retrospective civil or criminal sanctions is insufficient without proactive independent decision-making and periodic review. Under the Mental Capacity Act 2005 as then operating, a Court of Protection welfare order under sections 4A(3), 4A(4) and 16 was therefore required. A different legislative regime could satisfy Article 5(1) through suitable independent investigation and periodic reviews.

SRK lacked capacity to decide where he should live and what care, treatment and support he should receive. He lived in his privately owned property and received privately arranged, privately funded care from private carers, without involvement by the local authority or another public authority.

The Court of Protection, by an order made by Charles J on 24 May 2016, declared that the care arrangements amounted to a deprivation of liberty and authorised them by a welfare order. The Secretary of State appealed, arguing that the existing framework of regulation, safeguarding and civil and criminal law was sufficient, and that the deprivation was not imputable to the State in the absence of public involvement, abuse or deficient care. The central issue was whether the State’s positive obligation under Article 5(1) required a Court of Protection welfare order in these circumstances.

Decision

The appeal was dismissed. The Court of Appeal upheld the conclusion that, under the existing law and practice, a welfare order was required.

1. Applicable framework. Section 64(5) of the Mental Capacity Act 2005 gives deprivation of liberty the same meaning as Article 5(1). The three components are objective confinement for a not negligible period, lack of valid consent and attribution of responsibility to the State. The first two components were satisfied. The question was whether the third was established through the State’s positive obligations.
2. Positive obligation. Storck v Germany (2006) 43 EHRR 6 established that Article 5(1) requires the State to take reasonable steps to protect vulnerable persons from deprivation of liberty of which the authorities know or ought to know. Direct State involvement is not essential where the State has failed to provide effective protection against private interference.
3. Insufficient safeguards. The existing framework was largely reactive. The Care Quality Commission regulated private providers but did not check individual carers in private homes, and its regulations addressed the conditions and supervision of care rather than the arbitrariness of detention. The Public Guardian’s functions arose only once Court of Protection proceedings existed. Doctors and local authorities generally acted when concerns were reported, while civil and criminal sanctions operated retrospectively. These arrangements did not provide proactive independent decision-making and periodic review.
4. Quality of care. The fact that the regime was in SRK’s best interests and the least restrictive available option, and that there was no evidence of abuse, did not answer the Article 5(1) issue. The focus was protection against arbitrary deprivation, not merely the quality of care at the time of notification.
5. Consequence. In the present legislative regime, a welfare order under sections 4A(3), 4A(4) and 16 of the Mental Capacity Act 2005 was necessary. A different regime involving proactive investigation by a suitable independent body and periodic reviews might suffice. Streamlined paper applications and reviews could be appropriate in suitable cases. Lord Justice Elias and Lord Justice Beatson agreed.

• Court of Appeal (Civil Division). By [2016] EWCA Civ 1317, the court dismissed the Secretary of State’s appeal and upheld the requirement for a welfare order.
• Court of Protection. Charles J made a welfare order on 24 May 2016, authorising the private care arrangements as a deprivation of liberty in SRK’s best interests.