On 22nd December 2016 the Court of Appeal handed down judgment in Secretary of State for Justice and Staffordshire County Council (“Staffordshire”) and others providing a further chapter in the story since the judgment of the Supreme Court in Cheshire West in 2014.
The case concerned SRK, a man in his late thirties, who, as a result of a road traffic accident in 2005, had been left wheelchair bound and with very limited ability to communicate and requiring 24 hour care and assistance, seven days a week. SRK’s care package was managed by a private organisation appointed by his deputy IMTC. Staffordshire had no knowledge of SRK or his private arrangements until it received a letter from IMTC informing it that the arrangements for SRK may amount to a deprivation of liberty. Staffordshire then carried out an assessment and concluded that SRK was being deprived of his liberty.
The issue in the case was described by the Master of the Rolls in paragraph 1 of the judgment as whether “in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights (“the Convention”), it is necessary for a welfare order to be made by the Court of Protection (“the CoP”) pursuant to the Mental Capacity Act 2005 (“the MCA”) in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention (“Article 5(1)”).”
The Court of Appeal, upholding the decision of Charles J in the Court of Protection, unanimously decided that a welfare order is required by the COP in these circumstances. The judgment was given by the Master of the Rolls with the agreement of the other two judges.
In reaching its decision, paragraph 36 of the judgment of the Court of Appeal recorded that Charles J stated that: “His view (at  and ) was that the following important elements would be added by an application to, and the making of a welfare order by, the CoP: (1) 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; (2) the introduction of an independent decision maker who would have to be satisfied that the incapacitated person’s “voice” was properly before the court, and (3) the introduction of a system of review by that independent decision maker which, on the existing approach, would take place at defined intervals not exceeding one year.”.
Paragraph 39 of the judgment of the Master of the Rolls recorded without disagreement that conclusion of Charles J that, without a welfare order by the Court of Protection, there are insufficient procedural safeguards to satisfy the positive obligations of the State under Article 5(1) of the ECHR.
Significantly the judgment of the Master of the Rolls recorded, without disagreement from the Court of Appeal, that Charles J had stated (at paragraph 147 of his judgment) that he reached his conclusion with real reluctance because it seemed to him that in the present case and in many other such cases a further independent check by the Court of Protection will add nothing other than unnecessary expense and diversion of private and public resources which would be better focused elsewhere.
The Master of the Rolls, in paragraph 74 of his judgment, stated that the critical point was that there was nothing in this case or similar cases to trigger a periodic assessment. “…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 or treatment.”
The Court of Appeal therefore agreed with Charles J that the obligation of the State under Article 5(1) to take reasonable steps to prevent arbitrary deprivation of liberty was not met without a welfare order being made by the Court of Protection.
It is understood that the Secretary of State has decided not to apply for permission to appeal.