Rachel Kamm represents Secretary of State in Court of Appeal


The Court of Appeal has handed down an important judgment about the role of the Court of Protection and the circumstances in which there is a deprivation of liberty when someone is cared for privately: Secretary of State for Justice v Staffordshire County Council & Anor [2016] EWCA Civ 1317. 

SRK (an individual) was awarded personal injury damages following an accident. The Court of Protection appointed a deputy to make decisions about his property and finances. The deputy used the damages award to employ private carers to care for SRK in his own home. The care package satisfied the objective component of a deprivation of liberty (in light of the Cheshire West judgment), in that there was continuous supervision and control and SRK would not have been allowed to leave his home if he had tried. SRK did not have capacity to consent to these care arrangements.

The question for the Court was whether the situation was imputable to the State. If so, the situation would be a deprivation of liberty for the purposes of Article 5 ECHR. Under the terms of the Mental Capacity Act 2005, this would mean that the situation would be lawful only if it was authorised by the Court of Protection.

The Court of Appeal handed down judgment on 22 December 2016, agreeing with Mr Justice Charles (sitting in the Court of Protection) that the situation was imputable to the State. Whilst not directly involved in the arrangements, the State had failed to take measures to ensure the effective protection of vulnerable people in SRK’s situation about whom it knew or ought to have known. The Court of Appeal found that Article 5 ECHR required the State to ensure that there was pro-active independent investigation and periodic reviews of SRK’s situation. In the absence of such safeguards, the Court of Protection had to authorise SRK’s situation for it to be lawful. As the Court of Appeal emphasised, it is now a matter for the Secretary of State to decide what steps to take in order to meet the State’s obligations under Article 5.

Rachel Kamm represented the Secretary of State for Justice in the Court of Appeal, as she had done in the Court of Protection.