SKR and its Implications in Catastrophic Injury Claims
October 11, 2016
by Will Waldron QC
Charles J is well known to those in mental health tribunal circles. He has produced a number of highly intellectual and complex judgements dealing with deprivation of liberty and the inter-relationship between the MHA 1983 and MCA 2005 (but see in particular Secretary of State for Justice v KC ((2015) UKUT 376(AAC)). His decision in KC included the observation that the Court of Appeal, in a case called Secretary of State for Justice v RB ((2011) EWCA Civ 1608), had been wrong to say (obiter in his view) that the FTT could not discharge a patient with capacity on terms that would inevitably involve a deprivation of his liberty, albeit outside hospital, even if that patient consented to the terms. Under the MHA 1983, a mental health tribunal may not deprive a person of their liberty save in a hospital setting. Thus, discharge of a patient to a residential care home in which there will be an effective deprivation would be illegal under the 1983 Act. The fact that the decision to make such a discharge would actually benefit the patient and allow a less restrictive regime to be put in place would not avoid the illegality. On the other hand, if the conditions attaching to the discharge amounted to restrictions on freedom of movement falling short of deprivation, that would be acceptable.
It was in this way that the question whether the DOLS provisions of the MCA 2007, or an Order of the Court of Protection, might ride to the rescue of a patient who had fallen foul of the deprivation hurdle arose. Charles J grappled with this thorny issue in KC. He concluded that if DOLS (or an Order from the CoP) was in place, the First Tier Tribunal could discharge to, for example, a residential care home on conditions which, objectively judged, amounted to a deprivation of liberty. In effect, the DOLS or Order would render lawful that which otherwise would be unlawful. Of course, that is all well and good when the patient lacks capacity to consent but when he does not, neither DOLS nor a CoP Order is possible. This potential inconsistency and injustice was dealt with by Charles J by holding that the Court of Appeal in RB was wrong. He relied on passages from Lady Hale in Cheshire West (P v Cheshire West and Chester Council: P & Q v Suurrey County Council (2014) UKSC 19) and concluded that, provided the patient with capacity “validly consented” to the deprivation of liberty in a residential home, that would be enough to render the FTT’s decision lawful (pointing out that there is a right for individuals to make autonomous decisions about their lives and a corresponding duty of the State, under Article 8 for to respect that autonomy). That debate may not yet be over.
Thus, the backdrop to Charles J’s decision in SKR is both relevant and of interest. It very probably informs his approach to the question of a “private” deprivation of liberty in SKR and the appropriate safeguards that should be in place. The inference must be that there can be no such thing as “a private deprivation of liberty” (other than one amounting to a criminal offence or sounding in damages for false imprisonment, perhaps) if the State is under a parallel duty to do something about it. Charles J’s conclusion in SKR is surely that, in catastrophic injury claims involving traumatic brain injury which robs a person of capacity to decide where they live and how restrictive thier care regime should be, the State is under that very duty?
So, it was really Cheshire West and the question of deprivation of liberty that stared this ball rolling, along with the European decision in a case called HL (see HL v United Kingdom ((2005) 40 E.H.R.R. 32; also known as the Bournewood case). Both those decisions are interesting and to my eye, with great respect to the cerebral Charles J, rather easier to follow than SKR. It is helpful to look at Cheshire West, remembering that it involved severely mentally damaged persons within the care of local authorities, not private care packages flowing from pi litigation, and thus engaged Article 5 without any doubt – very different from the circumstances in SKR.
Cheshire West:
Lady Hale, who gave the main judgement and with whom the majority agreed, analysed European caselaw. She felt that the first question to be answered was whether the Article 5 right to physical liberty was the same for everyone; disabled or able bodied; and concluded, unsurprisingly, that it was. A deprivation of liberty does not cease to become so merely because its rationale is the benevolent desire to protect a seriously mentally disabled person. She went on to say that:
“The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is.” (paragraph 37)
Lady Hale, when asking what an “acid test” for deprivation of liberty might look like, said: (paragraph 49)
“The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence which started with HL v United Kingdom (40 EHRR 761): that the person concerned “was under continuous supervision and control and was not free to leave” (para 91).”
However, in the same paragraph, she appeared to agree that the test may not be entirely straightforward:
“A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany.”
She went on to say that there could be no prescriptive list and preferred to say what could not constitute a relevant factor rather than list those that could (paragraph 50):
“The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach.”
Thus, the starting point when considering a catastrophic tbi case and whether an application should be made to the CoP must be a consideration of whether the regime under review constitutes a deprivation of liberty in the first place. Restrictions on movement and deprivation of liberty are not the same thing, as the caselaw makes clear. No deprivation, no application. That may not be an entirely easy or comfortable assessment to make and thus, erring on the side of caution, an application may be wise in many cases but an “unthinking application” in every case would be unwise, in my view.
However, if a person has capacity to decide where to live and what care regime to accept then even if a deprivation of liberty is what his “concrete position on the ground” constitutes, he can agree to it and that is an end to the matter (although his understanding, agreement and the reasoning behind the regime would still need to be carefully documented, as would the assessment that it was the least restrictive option because in so many cases, capacity is a finely judged thing and future issues are entirely foreseeable).
Charles J’s judgement in SKR is not easy to follow. His focus is on the potential Article 5 breach by the State (the L/A; the Court appointing the Deputy and approving the damages and so on). That breach would not arise because of a direct responsibility for the deprivation of physical liberty but because of the duty, once the State knows, or ought to know, of the deprivation, to ensure that an acceptable system of supervision, review and check is in place. He suggests that the MCA provisions cannot come to the aid of the Deputy and justify or authorise a deprivation of liberty. What is required, says Charles J, is to make a CoP application for a welfare decision – but exactly who is supposed to make it is open to debate. He says a Deputy may be advised to make it; but a privately instructed Deputy cannot be in breach of Article 5 and, presumably, the rationale is that the local authority must ensure there is a proper review process in place (by which is meant here a judicially overseen process under the CoP) and either force the Deputy to do it, or do it themselves.
The decision in SKR should be given weight, particularly as it has been reached by a judge with a formidable understanding of the law. However, equally, it would be as well to bear in mind the comments of Lady Hale in Cheshire West when she said at paragraph 54:
“If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.”
Of course, Charles J would say that the facts of SKR brought the case within the ambit of State responsibility. Accepting that to be so, one should also bear in mind what Lady Hale went on to say, at paragraph 57:
“Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes).”
This rather begs the question why, if in the Cheshire West case the checks thought likely to be adequate were “not as elaborate as those currently provided for in the Court of Protection”, they should be greater in the case of a well looked after tbi Protected Beneficiary, which is the end result in SKR. Is it really necessary to have something more than the oversight of the Professional Deputy, under a duty to report to the local authority in cases in which a deprivation does, or may exist; and the ability of the local authority to review matters and make application to the CoP if necessary? Would it be stretching things too far to say that, each year, when submitting the accounts and justifying the expenditure, a Deputy could practically and pragmatically deal with the question of deprivation of liberty by outlining the regime, justifying its basis, highlighting any statements of relevant parties (such as the Protected Beneficiary, the family and so on), and asking for approval for continued expenditure for that purpose? Would that not satisfy the sort of scheme of which Lady Hale might approve and avoid over-burdening a no doubt already beleaguered local authority not to mention placing the financial burden in such cases where it surely belongs – at the door of the negligent Defendant?
Of course, if the regime in question amounts to an unlawful deprivation of liberty then, in like manner to the mental health tribunal, you cannot render it lawful simply by pointing to its laudable aims. Thus, the explanation for the SKR decision probably lies in the fact that there is no other regime available to the State in such a case as SKR. That mirrors the stance Charles J took in KC. However, I suspect the question of CoP involvement will need to be, and surely will be, revisited.
As a final matter of interest, it is fair to say that the “bible” for mental health law, Jones, suggests that, at least in the field of mental health law, cases in which a deprivation of liberty is established may be rather less than might be thought. It is postulated that “a significant degree of supervision and control, which is exercised on an almost constant basis” should be present before the “acid test” is satisfied. Jones opines that “control which involves the exercise of power to ensure that something happens to a person even if he does not want it to happen is not the same as support, which is to help and/or encourage a person to do something for himself.” Quite when supervision crosses the line and becomes control is not an easy question to answer. Looking at the matter “in the round” and taking account of cumulative restrictions will be important. And, noting what Charles J had to say about the MCA not providing protection to those depriving a person of liberty in cases such as SKR, nevertheless, restraint not amounting to a deprivation of liberty is authorised under section 6 MCA 2005 if the criteria set out there are met. Why that section could not be effectively deployed in many circumstances of which I can think in catastrophic brain injury claims I am uncertain.
Perhaps the intellectual debate may not matter that much. What is essential is to be aware of the potential problem; flag it up; have the question of capacity on the particular issue of accommodation and care assessed by the experts; take steps to ensure C is involved in the decisions (so far as possible); raise the matter with the Deputy and Case Manager in appropriate cases; and, importantly, get it costed for the purpose of damages.
How many Protected Parties/Beneficiaries will fall into the category of persons deprived of their liberty, and thus requiring CoP sanction for the imposition of their private care and accommodation regime, remains to be seen. Charles J appeared to suggest the numbers could be tolerably significant. I am not so sure. Watch this space!
