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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Staffordshire County Council v SRK & Anor [2016] EWCOP 27 (24 May 2016) URL: http://www.bailii.org/ew/cases/EWCOP/2016/27.html Cite as: [2016] 3 WLR 867, [2016] Med LR 398, [2016] Fam 419, [2016] WLR(D) 300, [2016] COPLR 504, [2016] EWCOP 27 |
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Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| STAFFORDSHIRE COUNTY COUNCIL | Applicant | |
| - and - | ||
| SRK (by his litigation friend SK) | ||
| IRWIN MITCHELL TRUST CORPORATION | ||
| THE SECRETARY OF STATE FOR JUSTICE | Respondents |
____________________
Sam Karim in writing (instructed by Stephensons Solicitors LLP) for SRK
Parishil Patel (instructed by Irwin Mitchell) for the third Respondent
Rachel Kamm (instructed by the Government legal Department) for the fourth Respondent
Hearing date: 10 March 2016
____________________
Crown Copyright ©
Charles J :
Introduction
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. Components (b) and (c) are not in issue here, but component (a) is.
i) no-one on the ground (D) can lawfully impose SRK's care regime on him (P) by making decisions in his best interests to provide and so fund it, and soii) a welfare order based on SRK's care regime must be made by the COP, which will authorise the deprivation of liberty it creates on the ground.
Overall conclusion
(1) The critical issue is whether, absent the making of a welfare order by the COP in cases within the class represented by SRK's case, the amendments to the MCA directed to filling the "Bournewood gap" have achieved that purpose in those cases.(2) In my view, it would not do so.
(3) In my view, a welfare order needs to be made in such cases 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 the spirit of Article 5.
(4) That conclusion is based on the premise that the State knows or ought to know of the situation on the ground.
(5) That knowledge exists in SRK's case and on my approach it would exist in all cases in the class it represents. This is because the court that awards the damages, the COP when appointing a property and affairs deputy and the deputy or the trustees or attorney or other person to whom the damages are paid should take steps to ensure (a) that the relevant local authority with duties to safeguard adults knows of the regime of care, and (b) that if, as here, the least restrictive available care regime to best promote P's best interests creates a situation on the ground that satisfies the objective and subjective components of a deprivation of liberty (and so a derivation of liberty within Article 5) a welfare order based on that regime of care is made by the COP.
(6) This conclusion should be factored into the calculation of damages awards in the future.
The third component – attribution of responsibility to the State
i) the third component is directed to whether the State is responsible for an existing situation on the ground that creates a deprivation of liberty within Article 5 because the objective and subjective components exist,ii) there can be deprivations of liberty within Article 5 in respect of which the third component is not satisfied, and
iii) in addressing the issue whether the third component is satisfied the ECtHR looks backwards to what has happened and so what the State has and has not done.
i) a deprivation of liberty of a person who lacks the relevant capacity to consent to it must be in accordance with a domestic procedure prescribed by law, andii) the detained individual must have practical and effective access to a court to enable him or others on his behalf to challenge his deprivation of liberty.
i) a concrete situation on the ground that satisfies the first two components as a deprivation of liberty, or a (private) deprivation of liberty, or a deprivation of liberty within Article 5, andii) a concrete situation on the ground that satisfies all three components as an Article 5 Deprivation of Liberty.
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, andii) 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.
i) not putting in place an appropriate regime of law, supervision and regulation, orii) by failing to interpret the regime that has been put in place or to apply powers under it in a way that promotes the spirit and so the purposes of Article 5.
But the determinative issue on the approach taken by the ECtHR is whether at the relevant time or times there was an existing failure to comply and so a breach of those obligations.
The general approach to domestic law and Convention rights
"Domestic law and Convention rights
54. The submissions on behalf of the appellants focused on article 5(4), and paid comparatively little attention to domestic administrative law. As I shall explain, that approach does not properly reflect the relationship between domestic law (considered apart from the Human Rights Act) and Convention rights.
55. The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states. For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. ------------------- As these examples indicate, the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system.
56. The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. ------------------------------------ In relation to article 5(4) in particular, the court has made it clear that in order for there to be compliance with that guarantee, there must in the first place be compliance with the relevant substantive and procedural rules of domestic law (Koendjbiharie v The Netherlands (1991) 13 EHRR 820, para 27).
57. ----------------------- The Human Rights Act has however given domestic effect, for the purposes of the Act, to the guarantees described as Convention rights. It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so. The Act also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.
58. That approach is now well established. -------------
63. Against the background of those authorities, the error in the approach adopted on behalf of the appellants in the present case is to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law. Properly understood, Convention rights do not form a discrete body of domestic law derived from the judgments of the European court. As Lord Justice-General Rodger once observed, "it would be wrong … to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply" (HM Advocate v Montgomery 2000 JC 111, 117).
It remains to be ascertained whether that deprivation was compatible with Article 5§1. The Court reiterates that Article 5§1 refers essentially to national law and lays down an obligation to comply with its substantive and procedural rules. It requires, however, that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness.
The approach to be applied to determining whether there is an Article 5 Deprivation of Liberty
The domestic regime of law, supervision and regulation
69. Hedley J's compelling analysis in Re Z (Local Authority: Duty) [2004] EWHC 2817 (Fam), [2005] 1 FLR 740, at para [19] of a local authority's duties towards a vulnerable adult seeking assisted suicide is as illuminating for what it does not say as for what it does:
"In my judgment in a case such as this the local authority incurred the following duties:
(i) to investigate the position of a vulnerable adult to consider what was her true position and intention;
(ii) to consider whether she was legally competent to make and carry out her decision and intention;
(iii) to consider whether any other (and if so, what) influence may be operating on her position and intention and to ensure that she has all relevant information and knows all available options;
(iv) to consider whether she was legally competent to make and carry out her decision and intention;
(v) to consider whether to invoke the inherent jurisdiction of the High Court so that the question of competence could be judicially investigated and determined;
(vi) in the event of the adult not being competent, to provide all such assistance as may be reasonably required both to determine and give effect to her best interests;
(vii) in the event of the adult being competent to allow her in any lawful way to give effect to her decision although that should not preclude the giving of advice or assistance in accordance with what are perceived to be her best interests;
(viii) where there are reasonable grounds to suspect that the commission of a criminal offence may be involved, to draw that to the attention of the police;
(ix) in very exceptional circumstances, to invoke the jurisdiction of the court under s 222 of the Local Government Act 1972.
My view is that its duties do not extend beyond that."
The local authority, it is to be noted, may provide advice and assistance, but there is nothing to suggest that it can intervene to regulate or control matters without judicial assistance. I respectfully agree with Hedley J's analysis.
Relevant provisions of the MCA
i) a procedure prescribed by law for SRK's (private) deprivation of liberty within Article 5(1), andii) SRK with a practical and effective access to a court to enable him to challenge his deprivation of liberty as required by Article 5(4).
i) there was a failure to provide a "procedure prescribed by law" as required by Article 5(1) because of the lack of procedural safeguards in respect of the application of the law of necessity which was not cured by the possibility of a later review (see paragraphs 102 to 124 of the judgment), andii) the ability to challenge a deprivation of liberty by habeas corpus or judicial review, and to bring a damages claim did not satisfy Article 5(4) (see paragraphs 136 to 142).
120. In this latter respect, the Court finds striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted. The contrast between this dearth of regulation and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 Act (see paragraphs 36 and 54 above) is, in the Court's view significant.
In particular and most obviously, the Court notes the lack of any formalised admission procedures which indicate who can propose admission, for what reasons and on the basis of what kind of medical and other assessments and conclusions. There is no requirement to fix the exact purpose of admission (for example, for assessment or for treatment) and, consistently, no limits in terms of time, treatment or care attach to that admission. Nor is there any specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention. The appointment of a representative of a patient who could make certain objections and applications on his or her behalf is a procedural protection accorded to those committed involuntarily under the 1983 Act and which would be of equal importance for patients who are legally incapacitated and have, as in the present case, extremely limited communication abilities.
121. The Court observes that, as a result of the lack of procedural regulation and limits, the hospital's health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit: as Lord Steyn remarked, this left "effective and unqualified control" in their hands. While the Court does not question the good faith of those professionals or that they acted in what they considered to be the applicant's best interests, the very purpose of procedural safeguards is to protect individuals against any "misjudgments and professional lapses" (Lord Steyn, paragraph 49 above).
122. The Court notes, on the one hand, the concerns regarding the lack of regulation in this area expressed by Lord Steyn (see paragraph 47 above), Lady Justice Butler-Sloss (see paragraph 61 above) and the Law Commission in 1995 (see paragraphs 66-68 above). On the other hand, it has also noted the Government's understandable concern (outlined in paragraph 80 above) to avoid the full, formal and inflexible impact of the 1983 Act. However, the current reform proposals set out to answer the above-mentioned concerns of the Government while at the same time making provision for detailed procedural regulation of the detention of incapacitated individuals (see, in particular, the Mental Capacity Bill described in paragraphs 77-78 above).
123. The Government's submission that detention could not be arbitrary within the meaning of Article 5 § 1 because of the possibility of a later review of its lawfulness disregards the distinctive and cumulative protections offered by paragraphs 1 and 4 of Article 5; the former strictly regulates the circumstances in which one's liberty can be taken away, whereas the latter requires a review of its legality thereafter.
124. The Court therefore finds that this absence of procedural safeguards fails to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, to comply with the essential purpose of Article 5 § 1. On this basis, the Court finds that there has been a violation of Article 5 § 1 of the Convention.
i) being deprived of his liberty as defined by s. 64 of the MCA, orii) being restrained in a manner that means that s. 5 of the MCA cannot be relied on.
i) requires the making of a welfare order by the COP to authorise a (private) deprivation of liberty within Article 5, andii) if it does not, whether that of itself is a breach of the State's positive obligations under Article 5, or whether and in what circumstances a failure to obtain such an order would amount to a breach of those positive obligations or the spirit of Article 5.
i) to ensure that the situation on the ground was authorised under the DOLS or by the making of a welfare order, orii) to ensure that the situation was kept under review by the relevant decision makers on the ground, the local authority and P's family and that they all remained of the view, and he agreed, that the care and treatment being provided was the least restrictive option to best promote P's best interests.
Such steps are directed to ensuring that there is no failure by public authorities and others to perform their obligations under the domestic regime of law, supervision and regulation and so, in the case of public authorities, under Article 5.
Essential issues and their consequences on the third component
(1) Whether the State was directly involved in SRK's (private) deprivation of liberty within Article 5 before the present application for a welfare order was made to the COP? If it was then the third component was satisfied at the date of that application and on any view SRK was then being deprived of his liberty as defined by the MCA and so that application was required.(2) Did the present application to the COP for a welfare order turn SRK's deprivation of liberty from one that was outside the MCA definition to one that was within it and so create the same result as in (1)?
(1) Does the domestic regime of law, supervision and regulation require that a welfare order should be sought and made? If it does, then:a. the COP must entertain all such applications and make an order with the result that the State so becomes directly involved in SRK's deprivation of liberty within Article 5, andb. if an application to the COP for a welfare order is not made, there will have been a failure to comply with the positive obligations of the State under and the spirit of Article 5 by any public authority who knows or ought to know of the existence of a (private) deprivation of liberty within Article 5.(2) If that domestic regime enables but does not require an application for and the making of a welfare order, does a failure to exercise the power or ability to apply for and make a welfare order constitute a breach of the State's positive obligations under Article 5 or its obligation to interpret and exercise its powers in a way that promotes the spirit and purposes of Article 5? The answer to this question gives rise to two possibilities depending on whether the obligations imposed by Article 5 on the State require the domestic regime to include a requirement that SRK's deprivation of liberty is authorised by the COP making a welfare order:
a. If they do, then there is an effective requirement to exercise that power or ability by making an application to the COP for a welfare order which founds the result in (1).b. If they do not, the consequence of how that power or ability is exercised would be fact sensitive and turn on whether an application to the COP was or was not needed to promote the spirit and purposes of Article 5. If it was, the failure to make the application would establish the third component and the making of the application would found the result in (1). But if it was not, the third component would not be satisfied and no application need be made.
Background facts
From my observations and discussions with family, care staff and professionals involved, it is my opinion that SRK is being supported in a person centred way ensuring that he has choice and control where possible and that any decisions are made in his best interests, considering his past wishes and involving family and appropriate professionals. SRKs living in a bungalow that was purchased for his use and is adapted so that he can mobilise in his wheelchair, he has a room with gym equipment and moving and handling equipment is in place so that SRK's care needs can be met. SRK has a small number of regular support workers from the care provider who are familiar with SRK's body language and communication needs and are aware of his past preferences and family's views regarding how you supported. SRK's family and care staff involved in his care feel he is being supported in the least restrictive way and in his best interests.
I do not feel there is a less restrictive option for SRK and feel that his current arrangements are in his best interests and should continue. I have discussed with the epilepsy nurse specialist regarding SRK being observed continually, he felt that at present this is proportionate to the risk, however, as assistive technology progresses, there may be less restrictive options in the future and it would be beneficial to review this regularly.
i) the DOLS apply to more people than was previously thought, andii) there are likely to be tens of thousands of people to whom the DOLS do not apply, because they are not in a Care Home or a Hospital, who are being deprived of their liberty as defined by the MCA with the result that welfare orders authorising that deprivation of liberty should be sought from the COP.
The Deputyship
Upon completion of the claim for damages /compensation the deputy shall apply by COP9 application for directions upon the management of SRK's estate and shall file with the application a witness statement in form COP24 setting out: (i) the proposed deployment of SRK's capital identifying the nature and cost of the assets to be acquired, and (ii) an annual income, capital and expenditure budget for the next three years.
i) when awarding the damages which were fixed by reference to the accommodation and care needs of SRK, andii) by appointing a property and affairs deputy and giving directions to that deputy.
The main arguments put to me and comment
i) a failure by the State to perform its positive obligations under Article 5 by not introducing a regime of law supervision and regulation that complied with those obligations and the spirit of Article 5,ii) any failure to properly interpret or apply that regime of law, supervision and regulation,
iii) the direct involvement of the State as a result of the involvement of the COP in these proceedings and earlier in the appointment of and in giving directions to SRK's property and affairs Deputy (IMTC), or of the High Court when awarding damages. (Save that a passing reference was made by the Applicant Council in reply to the authorisation of the damages award).
i) if an application is made to the COP for a welfare order it must deal with it and if it makes such an order the State is directly involved in the deprivation of liberty within Article 5 that it authorises, orii) if no such application is made, or if such an application is not granted when a deprivation of liberty within Article 5 exists on the ground, the State has failed to comply with its positive obligations under Article 5 and its spirit.
i) the domestic regime of law, supervision and regulation of a deprivation of liberty within Article 5 satisfies the positive obligations of the State under Article 5 to put in place such a regime, and thatii) its existence and proper performance does not of itself mean that the State is responsible for all such deprivations of liberty.
i) the State becoming directly involved in the deprivation of liberty, orii) the State violating the spirit and so underlying purposes of Article 5 or the positive obligations it imposes on the State.
i) bare notification of a (private) deprivation of liberty within Article 5 does not trigger an obligation on the local authority (or any other public authority) to investigate or take steps, provided that the notification does not obviously give rise to any cause for concern,and that as and when those obligations do arise:
ii) their performance does not always mean that the State is directly involved in the deprivation of liberty,
iii) their proper performance cannot be a violation of the positive obligations imposed by Article 5 or its spirit, unless the domestic regime falls short of what Article 5 imposes or requires, and
iv) having performed them the State does not in all cases have to refer a (private) deprivation of liberty within Article 5 to the COP by seeking or ensuring that someone else seeks a welfare order to authorise the (private) deprivation of liberty within Article 5.
i) under the domestic regime and so the procedure prescribed by the law of England and Wales a (private) derivation of liberty within Article 5 can be lawfully put in place, paid for and managed, without a welfare order being made by the COP, andii) such a domestic regime complies with the positive obligations imposed by Article 5 and its spirit and underlying purposes.
Point (i) involves an examination of what decisions can and cannot be made on behalf of P under the domestic regime without the involvement of the COP and so essentially what is covered by s. 5 of the MCA. Point (ii) involves an examination of the question whether absent a referral to and so subsequent review by the COP the domestic regime provides sufficient substantive and procedural protection against arbitrary detention.
The main authorities referred to before me and comments on them
89. The Court recalls that the question whether a deprivation of liberty is imputable to the State relates to the interpretation and application of Article 5 § 1 of the Convention and raises issues going to the merits of the case, which cannot be regarded merely as preliminary issues (see, mutatis mutandis, Nielsen, cited above, p. 22, § 57). It agrees with the parties that in the present case, there are three aspects which could engage Germany's responsibility under the Convention for the applicant's detention in the private clinic in Bremen. Firstly, the deprivation of liberty could be imputable to the State due to the direct involvement of public authorities in the applicant's detention. Secondly, the State could be found to have violated Article 5 § 1 in that its courts, in the compensation proceedings brought by the applicant, failed to interpret the provisions of civil law relating to her claim in the spirit of Article 5. Thirdly, the State could have violated its positive obligations to protect the applicant against interferences with her liberty carried out by private persons.
i) supports the view that State responsibility based on direct involvement is founded on the direct participation of the State in the care, support or related events (there the return of the applicant to the clinic by the police) that create the deprivation of liberty within Article 5 , andii) does not help on whether, and in what circumstances, either the proper or the defective performance of a regime that has been put in place pursuant to the positive requirements of Article 5 would amount to a violation of those positive obligations.
109 I agree with Ms Freeborn, Mr O'Brien and Ms Ball. There was no direct or active involvement by the local authority. It was not the decision-maker. It took no active steps to implement what the families had decided. Mere knowledge, in my judgment, is not enough. Knowledge may suffice to trigger a local authority's duty to investigate and, if appropriate, to invoke judicial assistance. But, as I have already said, there is no basis for attributing to the local authority here any failure in its performance of such obligations.
Article 5: Is there a deprivation of liberty?
110. My conclusions thus far mean that there has been no breach of Article 5 by the local authority and that the involvement of the local authority has not been such as thereby to make the State liable under Article 5 for whatever is happening to A and C in their homes. But the matter having been brought – properly and appropriately – to the attention of the court it is my duty under Article 5 to consider whether, as a matter of fact, either A or C is being "deprived of her liberty" in the sense in which that expression is used in Article 5(1).
i) when a local authority knows or ought to know of a situation that is or might be a deprivation of liberty within Article 5 its positive obligations under Article 5 are triggered, and that given the state of uncertainty on what was or was not a deprivation of liberty the local authority was entitled to bring the proceedings and was acting properly in doing so, and so the court had a duty to consider whether there was a deprivation of liberty within Article 5, butii) by performing its role and so its positive obligations (identified in paragraphs 69 and 85 of the judgment) including the making of the application to court the local authority did not make the State responsible for any such deprivation of liberty.
i) whether there would have been a breach of the positive obligations of the State if the local authority had not brought the matter to the attention of the court,ii) whether the application to the court and so the court's involvement meant that the State would have been responsible if he had concluded that the situation on the ground was a deprivation of liberty within Article 5,
iii) whether the court's involvement meant that if he was wrong on the point that there was not an objectively assessed deprivation of liberty within Article 5 that would violate the spirit of Article 5, or
iv) whether the relevant system of domestic law, supervision and regulation satisfies the spirit and underlying purposes of Article 5 and so by introducing it the State has satisfied rather than violated its positive obligations under Article 5.
i) proper performance of that system by a public authority in respect of a (private) deprivation of liberty within Article 5 does not make the State responsible for it, because the State has acted in a way that satisfied its positive obligations imposed by Article 5 and that promoted the spirit and purposes of Article 5,ii) by performing the positive obligations identified in paragraphs 69 and 85 of the judgment and so its role under the domestic regime of law, supervision and regulation the local authority would not become directly involved in a (private) deprivation of liberty within Article 5, and
iii) direct involvement of the State must be based on the direct participation of the State in the care, support or related events that create the deprivation of liberty within Article 5 and so its imposition.
The Court reiterates that in order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria --------------
The Court recalls that in certain situations Article 5 of the Convention can be applicable to detention by private persons. The responsibility of a State is engaged in particular if, being aware of such detention, the authorities acquiesced or failed to put an end to it. -------------- In the case of Storck (cited above) the Court also found that a State is obliged to prevent a "vulnerable person's" deprivation of liberty of which it has or ought to have knowledge.
---------------- Although it was partly owned by the State, the company enjoyed institutional and operational independence from it and the guards acted upon the instructions of the company's management. Accordingly, the authorities were not directly responsible for the applicant's stay with the factory guards.
The Court finds that it has not been demonstrated that the authorities were aware of or agreed to the applicant's confinement in the factory premises while it lasted. Moreover, it considers that, contrary to the applicant's allegations, at the material time he could not be considered "vulnerable" and was able to make use of the means of protection offered by Ukrainian law ------------------- In particular, it was open to the applicant either to make a complaint pursuant to Article 146 of the Criminal Code of 2001, or to lodge a civil claim in damages ------------- . The applicant availed himself of the latter avenue and had his claims examined on the merits by the civil courts. It cannot be said that the courts' decisions in the applicant's case were arbitrary or manifestly unreasonable.
The Court finds that the above considerations are sufficient to conclude that the situations complained of did not engage the State's responsibility and thus they do not attract the protection of Article 5 § 1 of the Convention.
i) Article 5 rights do not arise in respect of all private detentions, andii) in some circumstances the existence of a remedy and access to a court is sufficient and the State does not have to initiate that access when it knows of a (private) deprivation of liberty.
120. In addition, the Court has had occasion to observe that the first sentence of Article 5 § 1 must be construed as laying down a positive obligation on the State to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge (see Storck, cited above, § 102). Thus, having regard to the particular circumstances of the cases before it, the Court has held that the national authorities' responsibility was engaged as a result of detention in a psychiatric hospital at the request of the applicant's guardian (see Shtukaturov, cited above) and detention in a private clinic (see Storck, cited above).
(b) Application of these principles in the present case
121. The Court observes at the outset that it is unnecessary in the present case to determine whether, in general terms, any placement of a legally incapacitated person in a social care institution constitutes a "deprivation of liberty" within the meaning of Article 5 § 1. In some cases, the placement is initiated by families who are also involved in the guardianship arrangements and is based on civil-law agreements signed with an appropriate social care institution. Accordingly, any restrictions on liberty in such cases are the result of actions by private individuals and the authorities' role is limited to supervision. The Court is not called upon in the present case to rule on the obligations that may arise under the Convention for the authorities in such situations.
Discussion and conclusions
i) SRK is being deprived of his liberty as defined by s. 64 of the MCA, orii) SRK is being restrained and the conditions in s 6 and 16 of the MCA are not satisfied and so the protection conferred by s. 5 and the deputy's authority do not apply (the "restraint reason").
In those circumstances the MCA regime provides that a welfare order should be made by the COP and as a result that the COP should make the relevant decisions on behalf of P (see s. 16(2)(a)).
i) this is academic if under the MCA regime there is a requirement for SRK's (private) deprivation of liberty within Article 5 to be authorised by the COP, andii) if there is no such requirement, the appointment, supervision and decisions of the deputy fulfil the important underlying aim of the MCA to enable decisions to be made on the ground about the care and treatment of P without involving the COP, or the State in other forms, and so they should not trigger direct State involvement.
i) an initial decision and reviews leading to further decisions that rely on s. 5 of the MCA and so on a conclusion by the decision makers on the ground that the regime of care and treatment is in SRK's (P's) best interests because it is the least restrictive available option to best promote those interests, andii) the performance by the relevant local authority (and the CQC) of their investigatory, supervisory and regulatory roles to monitor the existence and results of that decision making process.
i) would necessitate an effective replication of the assessments, and so the stepping stones to a decision, set out in the DOLS because the COP would need and require such evidence to enable it to make a properly informed decision,ii) would introduce an independent decision maker who would have to be satisfied that P's "voice" is properly before the court, and
iii) would introduce a system of review by that independent decision maker which on the existing approach would take place at defined intervals not exceeding one year.
i) the decisions makers on the ground will apply the same test as the COP and will take into account the stepping stones that are the subject of the DOLS requirements and assessments, andii) the relevant local authority and other public authorities with adult safeguarding duties will have considered what if any steps they should take.
Further, the decision makers, family member and those public authorities would have the ability to apply to the COP for a welfare order.
i) the need for a welfare order and evidence supporting it will focus the minds of those involved on the ground, and thereby reduce the risk of misjudgements and professional lapses (see paragraph 121 of HL v United Kingdom cited above) by promoting both (a) decision making and reviews, and (b) investigation, supervision and regulation on a properly informed basis,ii) deputies and local authorities will not act in the same way in all cases,
iii) not all Ps will have supporting family members or friends,
iv) a different regime dependent on the identity of those involved would be impracticable or arbitrary, and
v) when, as here, a deputy, providers and a local authority have properly examined the issues, and their conclusion is supported by the family, a streamlined and so paper procedure for the making of the initial welfare order and paper reviews is likely to be appropriate.
i) if there had been any intention that s. 64(5) was to be in anyway subject to s. 64(6), or that s. 64(6) was intended to qualify the meaning of an Article 5 Deprivation of Liberty this would have been stated expressly,ii) s. 64(5) makes it clear that Parliament chose to import the ECHR and so the Article 5 meaning of a deprivation of liberty, as described by Baroness Hale in paragraph 37 of her judgment in Cheshire West (cited above) into the MCA,
iii) to engage that Article 5 meaning all three of the components referred to by Baroness Hale have to exist,
iv) within that meaning is the possibility that the deprivation of liberty can be by a public or private person, and
v) s. 64(6) simply confirms that, as is the case with an Article 5 Deprivation of Liberty, the MCA definition applies in every case whether the alleged deprivation of liberty is by a public or private person.
i) what s. 5 of the MCA does not authorise is an Article 5 Deprivation of Liberty, andii) what needs to be authorised by a welfare order made under the MCA is an Article 5 Deprivation of Liberty.
Sections 1, 4, 4A, 5, 6, 16, 18, 21A and 64(5) and (6) of the MCA provide:
1 The principles
(1) The following principles apply for the purposes of this Act.
(6) Before the act is done, or the decision is made, regard must be had to whether
the purpose for which it is needed can be as effectively achieved in a way that is less
restrictive of the person's rights and freedom of action"
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(6) He must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them,
the views of –
(a) anyone named by the person as someone to be consulted on the matter in
question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
This sectionnoteType=Explanatory Notes has no associated
(1) This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.
(2) But that is subject to—
(a) the following provisions of this section, and
(b) section 4B.
(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.
(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.
(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).
This section has no associated Explanatory Notes
(1) If a person ("D") does an act in connection with the care or treatment of another person ("P"), the act is one to which this section applies if—
(a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and
(b) when doing the act, D reasonably believes—
(i) that P lacks capacity in relation to the matter, and
(ii) that it will be in P's best interests for the act to be done.
(2) D does not incur any liability in relation to the act that he would not have incurred if P—
(a) had had capacity to consent in relation to the matter, and
(b) had consented to D's doing the act.
(3) Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.
This section has no associated Explanatory Notes
(1) If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied.
(2) The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P.
(3) The second is that the act is a proportionate response to—
(a) the likelihood of P's suffering harm, and
(b) the seriousness of that harm.
(4) For the purposes of this section D restrains P if he—
(a) uses, or threatens to use, force to secure the doing of an act which P resists, or
(b) restricts P's liberty of movement, whether or not P resists.
This sectionnoteType=Explanatory Notes has no associated
(1) This section applies if a person ("P") lacks capacity in relation to a matter or matters concerning—
(a) P's personal welfare, or
(b) P's property and affairs.
(2) The court may—
(a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or
(b) appoint a person (a "deputy") to make decisions on P's behalf in relation to the matter or matters.
(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).
(7) An order of the court may be varied or discharged by a subsequent order.
This section has no associated Explanatory Notes
(1) A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter.
(2) Nothing in section 16(5) or 17 permits a deputy to be given power—
(a) to prohibit a named person from having contact with P;
(b) to direct a person responsible for P's health care to allow a different person to take over that responsibility.
(6) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests).
(7) A deputy may not do an act that is intended to restrain P unless four conditions are satisfied.
(8) The first condition is that, in doing the act, the deputy is acting within the scope of an authority expressly conferred on him by the court.
(9) The second is that P lacks, or the deputy reasonably believes that P lacks, capacity in relation to the matter in question.
(10) The third is that the deputy reasonably believes that it is necessary to do the act in order to prevent harm to P.
(11) The fourth is that the act is a proportionate response to—
(a) the likelihood of P's suffering harm,
(b) the seriousness of that harm.
(12) For the purposes of this section, a deputy restrains P if he—
(a) uses, or threatens to use, force to secure the doing of an act which P resists, or
(b) restricts P's liberty of movement, whether or not P resists,
or if he authorises another person to do any of those things
21A Powers of court in relation to Schedule A1
(1) This section applies if either of the following has been given under
Schedule A1 –
(a) a standard authorisation;
(b) an urgent authorisation.
(2) Where a standard authorisation has been given, the court may determine any
question relating to any of the following matters –
(a) whether the relevant person meets one or more of the qualifying
requirements;
(b) the period during which the standard authorisation is to be in force;
(c) the purpose for which the standard authorisation is given;
(d) the conditions subject to which the standard authorisation is given.
(3) If the court determines any question under subsection (2), the court may make an
order –
(a) varying or terminating the standard authorisation, or
(b) directing the supervisory body to vary or terminate the standard
authorisation.
(4) Where an urgent authorisation has been given,----------------
(6) Where the court makes an order under subsection (3) or (5), the court may make
an order about a person's liability for any act done in connection with the standard
or urgent authorisation before its variation or termination.
(7) An order under subsection (6) may, in particular, exclude a person from liability
(5) In this Act, references to deprivation of a person's liberty have the same meaning as in Article 5(1) of the Human Rights Convention [defined as the Convention in the Human Rights Act 1998 in s. 64(1)].
(6) For the purposes of such references, it does not matter whether a person is deprived of his liberty by a public authority or not.
Extracts for the judgment of the ECtHR in Storck v Germany
a. Involvement of public authorities in the applicant's detention
90. The Court observes that it is not disputed between the parties that the applicant's confinement to the private clinic in Bremen had not been authorized by a court or any other State entity. Likewise, at least at the relevant time, there was no system providing for supervision by State authorities of the lawfulness and conditions of confinement of persons being treated in the said clinic.
91. However, the Court notes that on 4 March 1979 the police, by use of force, had brought the applicant back to the clinic from which she had fled. Thereby, public authorities became actively involved in the applicant's placement in the clinic. The Court observes that there is no indication that the applicant's express objection to returning to the clinic had led to any control on the part of the police or any other public authority of the lawfulness of the applicant's confinement to a private hospital. Therefore, even though State authorities caused the applicant's detention in the clinic only towards the end of her placement, this engaged their responsibility, as her confinement had otherwise ended on that date.
b. Failure to interpret the national law in the spirit of Article 5
92. In the present case, the applicant claimed that her rights under Article 5 § 1 of the Convention had been violated in that the Bremen Court of Appeal, in the compensation proceedings brought by her, failed to interpret the provisions of civil law relating to her claim in the spirit of that Article. In this respect, her complaint is closely linked both to the question whether the State had complied with possible positive obligations under Article 5 § 1 (see paragraphs 100-108 below), and to the question whether the applicant had had a fair trial within the meaning of Article 6 § 1 of the Convention (see paragraphs 130-136 below).
93. -------- In securing the rights protected by the Convention, the Contracting States, notably their courts, are obliged to apply the provisions of national law in the spirit of those rights. Failure to do so can amount to a violation of the Convention Article in question, which is imputable to the State. In this respect, the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective -------
96. Having regard to this, the Court considers that the Court of Appeal, in its interpretation of the provisions on the period of limitation, did not have sufficient regard to the right to liberty laid down in Article 5 § 1 of the Convention. In particular, that court did not consider the applicant's situation while being detained, in which she had in reality been incapable of bringing an action in court. -------------
97. Secondly, the interpretation adopted by the Bremen Court of Appeal concerning the applicant's contractual claims for damages warrants examination of its compliance with the spirit of Article 5. -------------- Assuming the applicant's capacity to consent, there is no factual basis whatsoever for the assumption that the applicant, who had clearly opposed to her stay and had tried to flee on several occasions, had consented to her stay and treatment in the clinic, thereby implicitly concluding a contract. If the applicant, in the alternative, had not been capable of consenting following her immediate treatment with strong medicaments, she could, in any event, not be considered as having validly concluded a contract. -------
98. Consequently, the Court of Appeal's finding that, under these circumstances, there had been a contractual relationship by which the applicant had authorized her stay and treatment in the clinic must be considered as arbitrary. The Court of Appeal cannot, therefore, be considered as having applied the national provisions of civil law designed to afford protection of the right to liberty safeguarded by Article 5 § 1 in the spirit of that right. ----------
c. Compliance with positive obligations on the State
100. The Court considers that the special circumstances of the applicant's case also warrant an examination of the question whether her detention is imputable to the respondent State because the latter has violated a positive obligation to protect the applicant against interferences with her liberty as carried out by private persons.
101. The Court has consistently held that the responsibility of a State is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of non-observance by that State of its obligation under Article 1 to secure those rights and freedoms in its domestic law to everyone within its jurisdiction --------------
102. Having regard to this, the Court considers that Article 5 § 1, first sentence, of the Convention must equally be considered as laying down a positive obligation on the State to protect the liberty of its citizens. Any conclusion to the effect that this was not the case would not only be inconsistent with the Court's case-law, notably under Articles 2, 3 and 8 of the Convention. It would, moreover, leave a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is, therefore, obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. -----------------.
103. ------------------ there are hospitals run by the State which coexist with private hospitals. The State cannot completely absolve itself from its responsibility by delegating its obligations in this sphere to private bodies or individuals. --------------- The Court finds that, similarly, in the present case the State remained under a duty to exercise supervision and control over private psychiatric institutions. These institutions, in particular those where persons are held without a court order, need not only a licence, but a competent supervision on a regular basis of the justification of the confinement and medical treatment.
104. Turning to the present case, the Court notes that, under German law, the confinement of a person to a psychiatric hospital had to be ordered by a judge if the person concerned either did not or was unable to consent. In this case, the competent health authority also had supervisory powers to control the execution of these court orders. However, in the applicant's case, the clinic, despite the lack of the applicant's consent, had not obtained the necessary court order. Therefore, no public health officer had ever assessed whether the applicant – what was more than doubtful – posed a serious threat to public safety or order within the meaning of Article 2 of the Act of the Land Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts. Consequently, the State also did not exercise any supervisory control over the lawfulness of the applicant's detention in the clinic for some 20 months.
105. It is true, though, that, with deprivation of liberty being a crime punishable with up to ten years' imprisonment, German law retrospectively provided sanctions with a deterring effect. Moreover, a victim could, under German civil law, claim compensation in tort for damage caused by an unlawful detention. However, the Court, having regard to the importance of the right to liberty, does not consider such retrospective measures alone as providing effective protection for individuals in such a vulnerable position as the applicant. It notes that particularly in the Act of the Land Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts, there were numerous – necessary – safeguards for persons detained in a mental institution following a court order. However, these safeguards did not apply in the more critical cases of persons confined to a psychiatric institution without such an order. It must be borne in mind that the applicant, once detained and treated with strong antipsychotic medicaments, had no longer been in a position to secure independent outside help.
106. The lack of any effective State control is most strikingly shown by the fact that on 4 March 1979 the police, by the use of force, had brought back the applicant to her place of detention from which she had escaped. Thereby, public authorities, as already shown above, had been involved in the applicant's detention in the clinic, without her flight and obvious unwillingness to return having entailed any control of the lawfulness of her forced stay in the clinic. This discloses the great danger of abuse in this field, notably in cases like that of the applicant, in which family conflicts and an identity crisis had been at the root of her troubles and long detention in a psychiatric hospital. The Court is therefore not convinced that the control exercised by State authorities merely in connection with the issuing of a licence for the conduct of a private clinic pursuant to Section 30 of the Act regulating the Conduct of Trade sufficed to ensure a competent and regular supervisory control against a deprivation of liberty in such a clinic. Moreover, Section 30 of the Act regulating the Conduct of Trade as such had not been in force at the beginning of the applicant's detention in the clinic.
107. The Court observes that shortly after the end of the applicant's detention in the private clinic, further safeguards have been introduced by Section 34 of the Act on Measures of Aid and Protection with respect to Mental Disorders for individuals detained in psychiatric institutions, responding to the lack of sufficient protection in this field. In particular, visiting commissions were created to inspect psychiatric institutions, to control whether the rights of patients were respected and to give patients the opportunity to raise complaints. However, these mechanisms came too late for the applicant.
108. Therefore, the Court concludes that the respondent State has violated its existing positive obligation to protect the applicant against interferences with her liberty carried out by private persons from July 1977 to April 1979. Consequently, there has been a violation of Article 5 § 1, first sentence, of the Convention.
Extracts for the judgment of Munby J in Re A and Re C
i) First, an obligation to put in place a legislative and administrative framework designed to provide effective deterrence against conduct that would infringe the relevant Convention right, a positive obligation which he demonstrates has been implied under a number of Articles, including Article 5: see Storck v Germany (2005) 43 EHRR 96 at paras [103]-[107] and [149]-[152].
ii) Second, an obligation to establish an effective independent judicial system so that responsibility for conduct infringing Convention rights may be determined and those responsible made accountable, an obligation which again arises under Article 5: see Storck v Germany (2005) 43 EHRR 96 at paras [92]-[99]. As the court said at para [93]:
"In securing the rights protected by the Convention, the Contracting States, notably their courts, are obliged to apply the provisions of national law in the spirit of those rights. Failure to do so can amount to a violation of the Convention Article in question, which is imputable to the State. In this respect, the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective."
iii) Third, an obligation to carry out an effective investigation into credible claims that serious violations of Convention rights have occurred, in particular where the State may bear responsibility. However, the obligation is not, says Mr Bowen, limited solely to acts or omissions of State agents, for which proposition Mr Bowen relies upon various authorities including, in relation to Article 5, Kurt v Turkey (1999) 27 EHRR 373.
iv) Fourth, an obligation in "certain well-defined circumstances" to take operational measures to protect an individual from the acts of third parties, that is, non-State agents, which would, if carried out by the State, constitute a violation of the Convention: see Osman v United Kingdom (2000) 29 EHRR 245. Again, in the context of Article 5, Mr Bowen points to Storck v Germany (2005) 43 EHRR 96, where, as we have seen, the Court ruled (at para [102]) that the State owes a positive obligation "to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge."
v) Fifth, an obligation to provide information and advice to individuals who are or may be at risk of a violation of their Convention rights: see Guerra v Italy (1998) 26 EHRR 357 and Oneryildiz v Turkey (2004) 39 EHRR 12 at para [90]. Mr Bowen submits that this obligation may be understood as one which thereby enables the individual either to avoid the risk or, if exposed to it, to take steps to mitigate its effects and/or to seek a remedy if thereby harmed.
vi) Sixth, and in order to prevent unlawful discrimination, an obligation which is violated when the State, without an objective and reasonable justification, treats differently persons whose situations are the same or fails to treat differently persons whose situations are significantly different: see Pretty v United Kingdom (2002) 35 EHRR 1 at para [88]. Mr Bowen submits that this duty may arise where a measure – or a failure to adopt a measure – has disproportionately prejudicial effects on a particular group with a protected 'status' for the purposes of Article 14 (see Adami v Malta [GC] (2007) 44 EHRR 3 at para [80]), in which circumstances the State may come under an obligation to take positive measures to remedy the inequality.
i) These will include the duty to investigate, so as to determine whether there is, in fact, a deprivation of liberty. In this context the local authority will need to consider all the factors relevant to the objective and subjective elements referred to in paragraph [48] above.
ii) If, having carried out its investigation, the local authority is satisfied that the objective element is not present, so there is no deprivation of liberty, the local authority will have discharged its immediate obligations. However, its positive obligations may in an appropriate case require the local authority to continue to monitor the situation in the event that circumstances should change.
iii) If, however, the local authority concludes that the measures imposed do or may constitute a deprivation of liberty, then it will be under a positive obligation, both under Article 5 alone and taken together with Article 14, to take reasonable and proportionate measures to bring that state of affairs to an end. What is reasonable and proportionate in the circumstances will, of course, depend upon the context, but it might for example, Mr Bowen suggests, require the local authority to exercise its statutory powers and duties so as to provide support services for the carers that will enable inappropriate restrictions to be ended, or at least minimised.
iv) If, however, there are no reasonable measures that the local authority can take to bring the deprivation of liberty to an end, or if the measures it proposes are objected to by the individual or his family, then it may be necessary for the local authority to seek the assistance of the court in determining whether there is, in fact, a deprivation of liberty and, if there is, obtaining authorisation for its continuance.
Article 5: Is the State responsible?
i) First, by the "direct involvement" of public authorities in the person's deprivation of liberty. If it takes place in a hospital or care home that is run by a public authority then the State will be directly involved. But even where the place of detention is privately owned, the State may be, or become, directly involved in the deprivation of liberty. I shall return to this topic below.
ii) Secondly, the State can violate Article 5(1) if its courts, in domestic proceedings brought by a detainee, fail to interpret the provisions of domestic law in the spirit of Article 5. I have dealt with this already. And although it may affect my responsibilities it plainly cannot affect the local authority.
iii) Thirdly, the State can violate its positive obligations to protect the detainee against interferences with his liberty carried out by private persons. As we have seen, the State owes a number of positive obligations under Article 5 to protect individuals from arbitrary interferences with their right to liberty, whether by state agents or by private individuals. I have dealt with this already. There is, in my judgment, no basis for attributing to the local authority here any failure in its performance of whatever positive obligations it may have had. It has investigated and, appropriately, brought the matter to the attention of the court.