LexisPSL Local Government, in partnership with Tim Spencer-Lane, considers the concept of 'private' deprivations of liberty for the purposes of Article 5 ECHR, involving people who lack the material decision-making capacity.
A private deprivation of liberty refers to a situation where the relevant care or treatment has not been being arranged and funded by the state but by private persons—for instance, care services might have been arranged by the person’s own family and paid for from the person’s funds or funds provided by family.
A private deprivation of liberty could potentially occur in a hospital or care home setting (eg the person themselves might have arranged and paid for a private care home placement without any assistance from a public authority). A private deprivation of liberty might also occur in supported living, shared lives accommodation (sometimes referred to as adult placements), and domestic settings (where the person is living in a family home or living on their own in normal non-specialist housing). (Care and Support and After-care (Choice of Accommodation) Regulations 2014, SI 2014/2670, regs 7 and 8)
What is deprivation of liberty?
Article 5 of the ECHR guarantees the right to personal liberty and provides that no one should be deprived of their liberty in an arbitrary fashion. Article 5(1)(e) permits the lawful detention of, among others, 'persons of unsound mind' in accordance with a procedure prescribed by law. Article 5 also requires certain safeguards to be provided to persons deprived of liberty, including the right of access to speedy judicial proceedings to challenge the lawfulness of the detention.
In the context of a person of 'unsound mind', the European Court of Human Rights in Storck v Germany  ECHR 61603/00, paras 74 and 89 has confirmed that a deprivation of liberty has three elements:
- the objective element of confinement in a restricted space for a non-negligible period of time
- the subjective element that the person has not validly consented to that confinement, and
- the detention being imputable to the state
Imputability to the state
When it comes to identifying potential private deprivations of liberty, the third element above is often a key issue (ie whether the state of affairs is imputable to the state). The European Court of Human Rights in Storck has held that the State can be responsible for a deprivation of liberty in three ways:
- the direct involvement of public authorities in the person’s detention
- if the courts have failed to interpret the law governing any claim for compensation for unlawful deprivation of liberty 'in the spirit of Article 5', or
- the state has breached its positive obligation to protect the person against interferences with his or her liberty by private persons
The first type of deprivation of liberty is referred to as 'direct state responsibility', and the third type is referred to as 'indirect state responsibility'. It is likely that most private deprivations of liberty will arise as a result of indirect state responsibility.
The leading authority on the responsibilities of the state under Article 5 is Storck v Germany. This case concerned an 18-year-old woman who had been placed in a locked ward of a private psychiatric institution at her father’s demand who believed her to be suffering from a psychosis. The European Court of Human Rights held that the direct involvement of the state arose due to the involvement of the police in returning her to the institution when she had attempted to leave. In addition, the state had violated its positive obligations since there had been inadequate supervisory control over the lawfulness of the detention.
The inclusion of indirect state responsibility reflects the fact that Article 1 of the ECHR requires the state to secure convention rights and freedoms in its domestic law to everyone within its jurisdiction. In respect of the right to personal liberty, the jurisprudence establishes that the first sentence of Article 5(1) establishes a positive obligation on the state to protect all of its citizens against interferences with their liberty whether by state agents or by private individuals. In Storck v Germany, para 102 the European Court of Human Rights reasoned that:
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 also 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'.
The positive obligations imposed by Article 5
In Re A (a child) (deprivation of liberty) Re C (vulnerable adult) (deprivation of liberty)  All ER (D) 50 (Aug), the court considered whether the domestic care at home by their parents of a child and an adult amounted to a deprivation of liberty. Both individuals were being locked in their bedroom at night for their own safety by their parents. In both cases, the local authority provided care and support services (but not for the period when they were locked in their rooms) and were aware of the night-time arrangements.
Sir James Munby, President of the Court of Protection, held that neither individuals were in fact being deprived of their liberty since the objective element was not present. Nevertheless, the judgment also considered the responsibility of the state in cases such as these. It was held that the provision of care and support by a public authority (in this case a local authority) to someone in a domestic setting will not, of itself, trigger direct state responsibility for a deprivation of liberty and that, similarly, 'mere knowledge' of the home arrangements which led to the detention will also not be sufficient. But where a public authority knows or ought to know that a vulnerable child or adult is subject to restrictions on their liberty by a private individual, which may give rise to a deprivation of liberty, the following positive obligations are triggered:
- a duty to investigate whether there is, in fact, a deprivation of liberty. If the authority investigates and finds no deprivation of liberty it has discharged its immediate responsibilities. But in some cases it may be required to continue to monitor the situation
- a duty in appropriate circumstances to provide support services to the individual and/or the carers that will enable inappropriate restrictions to be ended, or at least minimised
- a duty to refer the matter to the court if there are no reasonable measures that it can take to bring the deprivation of liberty to an end, or if the measures it proposes are objected to by the individual or the family
It should be noted that, in this judgment, the analysis of the objective element of a deprivation of liberty applies authority that pre-dates the Supreme Court decision in P v Cheshire West and Chester Council and P v Surrey County Council  2 All ER 585.
Guidance produced by the Law Society suggests that pending clarification from the courts, there is likely to be sufficient State involvement to make the situation fall within the scope of Article 5(1), if:
- arrangements are made, whether by a local authority or NHS body, to commission and provide care in the individual's own home, or
- direct payments (including personal health budgets) are made (whether for social or health care) to a family member or professional carers to arrange and provide care to the individual in the individual's own home, or
- the decision that the individual should remain in their own home and be cared for there has been taken on their behalf by the Court of Protection
It also advises that, where decisions have been taken on the person’s behalf by a best interests decision-making process involving the relevant local authority or NHS body, the state will be 'on notice' of any deprivation of liberty that may arise in consequence of those decisions, and the local authority or NHS body may have positive obligations to ensure there is authority for that deprivation of liberty.
The guidance was commissioned by the Department of Health but does not represent 'official' government guidance.
When does private deprivation of liberty arise?
There has been limited judicial consideration of the extent of state involvement that will lead to a private deprivation of liberty. In Rochdale Metropolitan Borough Council v KW  EWCOP 45, the court considered the situation of a woman with severe brain damage who received care and treatment (funded by the local authority and clinical commissioning group) at home—held under a tenancy from a housing association. At first instance, Mr Justice Mostyn concluded that the objective element of a deprivation was not present in this case. But he also made the following observations (obiter):
I am not suggesting, of course, that it is impossible for a person ever to be deprived of his liberty by confinement in his or her own home. In the field of criminal law this happens all the time. Bail conditions, or the terms of a release from prison on licence, routinely provide for this. However, I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person's own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged.
The footnote to this paragraph observes that 'there is also the problematic question of whether the state is involved in a private arrangement if benefits, such as attendance allowance, are paid to help with the care of the protected person.'
The Court of Appeal allowed an appeal against this ruling by consent in Rochdale MBC v KW  2 All ER 181.
The case of W City Council v Mrs L  All ER (D) 323 (Mar) concerned a 93-year-old woman with dementia living in her own home and receiving care and support from her family and the local authority. During a discussion of the objective element of deprivation of liberty, Mr Justice Bodey stated that the 'own home consideration' was a 'relevant factor in the mix'. Ultimately, it was held that the objective element had not been met, and therefore Mrs L was not deprived of her liberty. But Mr Justice Bodey went on to state (obiter) that even if the objective element had been met, he would not have found a deprivation of liberty because the 'strong role' which the family played in the relevant care arrangements had diluted the responsibility of the state. But according to the judgment, the issue regarding the different types of state imputability had been introduced only very late by Counsel for the local authority, and not pressed by her.
Staffordshire County Council v SRK  All ER (D) 169 (May) concerned a victim of a road traffic accident who had sustained a brain injury necessitating 24-hour care. A significant damages award was made by the Queen’s Bench Division, enabling his property and affairs deputy to purchase an adapted bungalow for SRK and fund a private care package. There was no input from the local authority. The effect of his injuries meant that the objective and subjective elements of a deprivation of liberty were in place. The issue therefore arose as to whether the state was responsible, directly or indirectly, so as to engage Article 5.
Mr Justice Charles held that the state does not become directly responsible simply because the local authority had undertaken assessments (and had applied to the Court of Protection for a welfare order authorising the deprivation of liberty) or because the placement was registered with the Care Quality Commission. The steps undertaken by these bodies were described as 'part of the supervision and regulation of private providers of care and do not found a sufficient direct participation by the state as a decision maker, provider or otherwise in the creation and implementation of SRK’s (private) deprivation of liberty within Article 5'. Similarly, the state does not become directly responsible as a result of:
- an application for a welfare order
- a court awarding damages
- the Court of Protection appointing a deputy, or
- the involvement of a deputy
However, Mr Justice Charles concluded that a welfare order was needed to avoid a violation of the state’s positive obligations. This positive obligation was triggered by the state’s knowledge of the concrete situation on the ground. This knowledge arises as a result of the following becoming aware that subjective and objective elements are in place:
- the court awarding damages
- the Court of Protection when appointing a deputy, or
- the deputy/attorney/trustee to whom damages are paid
In London Borough of Haringey v R (by his litigation friend, the Official Solicitor) and others  All ER (D) 78 (Jul), Senior Judge Lush considered the position of a young man with learning disabilities and autism who had been moved into supported living accommodation. His mother, father and brother, who were his deputies (both for property and affairs and personal welfare), had chosen the placement. In this case it was held that the objective and subjective elements existed, and that the local authority was directly responsible for the deprivation of liberty. The direct responsibility of the state had arisen because the local authority had funded the placement and provided specialist knowledge to enable the family to access the choice of providers (for instance it had provided the family with a list of care providers for them to choose from). The local authority was ultimately making the determination as to what was in the person’s best interests, and in doing so was taking into account the views of the family/deputies as required by the Mental Capacity Act 2005, s 4.
Authorising private deprivations of liberty
A private deprivation of liberty that is occurring in a hospital or a care home can be authorised by a local authority in its role as the supervisory body under the Deprivation of Liberty Safeguards contained in the Mental Capacity Act 2005 Sch A1.
Section 64(6) of the Mental Capacity Act 2005 provides that, for purposes of references to a deprivation of liberty, it does not matter whether a person is deprived of their liberty by a public authority or not. There has been some debate about whether the effect of this provision is to remove the requirement that a deprivation of liberty must be imputable to the state for the purposes of the Mental Capacity Act 2005. However, Mr Justice Charles in Staffordshire CC v SRK has held that section 64(6) simply confirms that a deprivation of liberty does not have to be by a public authority.
Outside a hospital or care home setting, a private deprivation of liberty could be authorised by the Court of Protection under a welfare order under the Mental Capacity Act 2005 ss 4A, 16(2)(a). A streamlined court procedure has been implemented for dealing with such cases (often referred to as the 'Re X process').
There are a limited number of cases in which the requisite authority for a private deprivation of liberty would have to come from the High Court under its inherent jurisdiction (for instance in relation to children under 16) e.g. Re X and others (deprivation of liberty)  2 All ER 1154, and Re X (Number 2)  EWCOP 37
This article, written in partnership with Tim Spencer-Lane was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.