The Court of Appeal have upheld the ruling of the Court of Protection that a private care package in a private home can amount to a deprivation of P’s liberty that is imputable to the state in certain circumstances. This is likely to continue to place significant burden on courts, deputies, trustees, attorneys who are now expected to report private arrangements amounting to a potential deprivation of liberty to the local authority, which may need to apply to the Court of Protection for authorisation.
The upholding of the Court of Protection judgment is likely to continue to place significant extra burden on the courts, deputies, trustees, attorneys who are now expected to be continually mindful of private care regimes amounting to a deprivation of liberty and report these to the safeguarding department at the local authority. As a result, local authorities are likely to see a further increase in their workload and the Court of Protection, a further increase in the number of applications for welfare orders authorising a deprivation of liberty.
This situation is likely to continue until the Government heeds the request from the courts for the development of a framework for proactive investigation and periodic reviews of private care arrangements.
The Court of Appeal confirmed Mr Justice Charles’ ruling in the Court of Protection that a privately funded care package implemented in a person’s own home, that gives rise to a deprivation of liberty, can still be imputable to the State and therefore may require a welfare Order from the Court of Protection authorising the deprivation of liberty.
The long established components of a deprivation of liberty are that the person affected must (i) be objectively detained for more than a negligible period of time, (ii) subjectively objecting to the detention (unless incapable, in which case he cannot do so) and (iii) the detention must be imputable to the State.
SRK suffered a catastrophic accident and was left severely brain damaged as a result. His compensation paid for restrictive a package of care in an adapted bungalow which the parties agreed fulfilled (i) and (ii). However, as no part of the care package was funded or provided by a public authority, it was not clear if (iii) was met.
In May 2016, Mr Justice Charles, held that state responsibility for a DoL can result from
Mr Justice Charles then confirmed that the State had positive obligations towards SRK under Article 5 as it knew or ought to have known of the circumstances of SRK as:
As both courts were aware of the circumstances of SRK, this knowledge could be imputed to the State.
Mr Justice Charles concluded that, if the State had this knowledge but failed to make a Welfare Order authorising SRK’s deprivation of liberty, the State failed in its positive obligations under Article 5 thereby ensuring State responsibility.
On Appeal, the Secretary of State argued that existing civil and criminal law and the safeguarding obligations upon public bodies were enough to satisfy the State’s positive obligations under Article 5 and that a private deprivation of liberty cannot be attributed to the State where there was no reason for the Local Authority or any other public body to have any suspicion about the abuse.
The Court of Appeal upheld the judgment of the Court of Protection. Therefore if the state has been put on notice regarding a private deprivation of liberty, this deprivation of liberty must be authorised by the Court of Protection.
The Court of Appeal rejected the Secretary of State’s arguments on the following grounds; namely, that existing civil / criminal frameworks and safeguarding obligations only apply once someone under a private regime of care has been drawn to the authorities’ attention (i.e. they depend on someone reporting that something is wrong). There is currently no process that triggers a periodic assessment of their situation. Therefore, it is not sufficient to rely on the existing civil / criminal frameworks and safeguarding obligations for the purpose of meeting the state’s positive obligations under Article 5 as these do not involve taking reasonable steps to prevent an arbitrary detention of liberty.
The court noted that while an application to the Court of Protection is necessary in the present state of the law for the State to discharge tis positive obligation under Article 5(1), such a step might not be essential if a different legislative and practical regime were to provide for proactive investigation by a suitable independent body and periodic reviews.
The judgment is available here.