The Court of Appeal upheld the decision in SRK that a deprivation of liberty in a privately-arranged care regime must still be authorised by the Court of Protection until and unless an alternative regime for authorisation is in place.
SRK had a brain injury following a road accident and was held to lack capacity to make decisions about his care and residence. He also had a number of physical conditions and was wheelchair-bound. His needs were such that he required 24-hour care seven days a week.
SRK’s had been awarded a substantial sum in damages following his accident, which was managed by a professional deputy. The deputy arranged for his care needs to be met by round-the-clock support in his own home. The local authority had no involvement in SRK’s care and was unaware of his circumstances, until a letter from the deputy informing them that his care arrangements might constitute a deprivation of liberty.
As SRK was outside of the Deprivation of Liberty Safeguards (not being in a care home or hospital) the local authority applied to the Court of Protection to have the deprivation authorised, and this was granted. The question on appeal (brought by the Secretary of State) was whether the deprivation was attributable to the state – the three limbs of a deprivation of liberty which requires authorisation being:
- the objective deprivation of liberty as per the Cheshire West ‘acid test’
- the lack of valid consent, including the lack of capacity to give consent, and
- the attribution of responsibility to the state.
As such, if the state was not responsible, the local authority need not have made any application, despite the parties agreeing that the other two limbs were met.
At the first instance in May 2016, Charles J ruled that the deprivation was attributable to the state, not due to any direct involvement in this case, but because for those in SRK’s circumstances the provisions of the Mental Capacity Act do not provide sufficient procedural safeguards for the state’s obligations under Article 5. He also highlighted the benefits that court authorisation brings, in particular independent scrutiny and regular reviews.
On appeal, the Secretary of State argued that existing safeguards – such as the Care Quality Commission’s investigative powers and local authorities’ safeguarding duties – were sufficient under Article 5 and that a COP order was a ‘gold standard’ unnecessary cases such as this.
The court dismissed the appeal, upholding Charles J’s reasoning.
The need to seek authorisation for a care regime that deprives a person of their liberty guarantees that person a certain level of procedural protection, including independent scrutiny and regular reviews. Without these safeguards a person is at a disadvantage, no matter how benevolent the intentions behind their care may be.
In HL v United Kingdom, the European Court of Human Rights recognised this disadvantage when considering the position of an incapacitated person in hospital informally against that of a person held under a section of the Mental Health Act. This ‘Bournewood Gap’ was the closed with the Deprivation of Liberty Safeguards in the 2007 MCA amendment, providing a whole host of procedural requirements to authorise deprivations of liberty in hospitals and care homes.
In dismissing this appeal, the court has hopefully avoided the creation of a second gap in which those whose care is arranged by their local authority are entitled to greater protection against arbitrary detention than those in private arrangement – an unimportant distinction for those to whom the care is provided.
Local authorities are under considerable pressure to bring COP applications for those being deprived of their liberty in settings other than care homes and hospitals, even with the Re X streamlined procedure. This judgment will do nothing to ease that pressure. No doubt with an eye to the Law Commission review, Sir Etherton MR pointed out that other potentially less cumbersome methods of authorisation could potentially suffice:
‘Finally, it is important to note that, while an application to the COP is necessary in the present state of law… 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. It would, as Ms Kamm said, be for the Government to fill the gap as it had done in the case of the Bournewood Gap.’
We look forward to the Law Commission’s delayed final paper and draft Bill (due in March 2017) that will hopefully set out how Article 5 procedural safeguards can be guaranteed to the increased number of people now recognised as being deprived of their liberty since Cheshire West. This judgment reinforces the breadth of situations in which a deprivation can arise and in which any new regime will need to apply.
The full judgment can be found here.