Court Of Appeal: State Imputability & Deprivation Of Liberty
Sam Karim represented the litigation friend and successfully resisted an appeal mounted by the Secretary of State for Justice in Secretary of State for Justice v Staffordshire County Council & Anor  EWCA Civ 1317 (22 December 2016).
Mr Justice Charles at first instance  EWCOP 27 found that the State held indirect responsibility for private deprivations of liberty arising out of care arrangements made by a property and affairs deputy. Those arrangements were made via an award of personal injury damages. At first instance, the Court determined where the State was not directly responsible for the deprivation of liberty, it had to be considered whether the domestic regime of law, supervision and regulation satisfied the spirit and purpose of Article 5 of the European Convention on Human Rights (“ECHR”). The Court concluded that, absent the making of a welfare order, there were insufficient procedural safeguards to satisfy the State's positive obligations under Article 5(1) of the ECHR.
The Secretary of State submitted on appeal that:
(a) Existing civil and criminal law and the obligations on public bodies to safeguard vulnerable individuals were sufficient to satisfy the positive obligation under Article 5;
(b) Responsibility for a "private" deprivation of liberty could not be attributed to the State where the care regime was in the person's best interests and was the least restrictive available option.
Giving judgment in the Court of Appeal, the Master of the Rolls stated that Mr Justice Charles was entitled, and right, to conclude that in cases such as this where there was no process of assessment and review, there were insufficient procedural safeguards against arbitrary detention in a purely private care regime, unless a welfare order was made (see paragraphs 74-75, 78-79).
The Court highlighted that save where there were already proceedings in the Court of Protection, the domestic regime depended on people reporting that something was wrong:
“74. The critical point…. emphasised, is that, although local authorities and the CQC have responsibilities for the quality of care and the protection of persons in SRK’s position, they will only act if someone has drawn the matter to their attention and there is nothing to trigger a periodic assessment. The same is true of doctors and other health professionals. 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.
75. For the same reasons, as was stated by the ECtHR in Storck, criminal and civil law sanctions which operate retrospectively after arbitrary deprivation of liberty has occurred, are insufficient to discharge the State’s positive obligation under Article 5(1).”