Recently I have been wrestling with a particularly knotty legal puzzle concerning the relationship between the Mental Capacity Act 2005 (MCA) and the meaning of ‘public authority’ under s6 Human Rights Act 1998 (HRA). The issue is that the protection afforded by the MCA is essentially parasitic on existing law; thus where there are gaps in the protection of the existing law, there will be gaps in the protection potentially offered by the MCA. This is because the Act does not create any new rights, torts or offences (bar the s44 criminal offence of wilful ill-treatment or neglect), but codifies a ‘general defence’ that protects carers and professionals against liability or prosecution for acts in connection with care and treatment of people who lack capacity.
Lots of acts that might infringe the rights of people with impaired (or thought to be impaired) capacity will of course be protected by the common law or ordinary statutes, but there will be some areas that are best protected by the HRA. In fact, I suspect this is particularly true for people in care settings, where their autonomy, dignity and privacy might be especially at risk in ways that are not straightforwardly covered by ordinary torts or statutes. I struggle to think of any other areas of law that might be effectively used to challenge, for instance, care practices that compromise dignity or privacy, or perhaps care settings with excessively restrictive regimes. I think in future we may see Article 8 increasingly invoked in care settings; we have already seen it being used by detained long-stay mental health patients to attempt to overturn smoking bans in hospitals (N v Nottinghamshire NHS Trust (2009), and in Scotland to attempt to overturn restrictions on patients eating takeaway food, or food gifts brought in by visitors (Lyons v Board of State Hospital, 2011). Both attempts were ultimately unsuccessful, but the courts emphasised that in these contexts it did not regard the claims as trivial, paving the way for future claims on day to day infringements of autonomy in care settings.
Without wishing to do down the importance of claims under Articles 3 and 8 or other rights, I want to focus on a the relationship between the 'public authority' debate and Article 5 in care settings. I am going to give a bit of background to the 'meaning of public authority' debate in social care settings. Then I want to consider whether this gap in protection afforded by the HRA in care has the potential to undermine the deprivation of liberty safeguards. Is just 'a lawyers puzzle', or might it have more serious implications for compliance with the deprivation of liberty safeguards?
The ‘meaning of public authority’ debate
If you’re unfamiliar with this debate, prepare yourself for an area of law which rivals for the deprivation of liberty safeguards for legal uncertainty, unpredictability and controversy. Historically, human rights have been seen as a mechanism for protecting individuals against the excesses of state power. Consequently, when the HRA was drafted it meant actions for human rights violations could only be brought against bodies of the state – public authorities. However, at the time of the passage of the HRA, parliament it was acknowledged that a definition of public authorities was needed that:
...went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities. (Jack Straw, 16 February 1998, Hansard)
From the perspective of social care, the danger was that as local authorities increasingly outsourced social care provision to the private sector, the protection of service users under the HRA would be diminished if the meaning of ‘public authority’ did not include these providers. If anything, this danger has grown – the CQC reported in 2011 that:
‘The private sector continued to expand, and the public sector contracted further: For example, local authorities now own only 11% of all care homes in England, continuing the trend towards greater outsourcing, generally at a lower cost.’ (State of Care Report, p30).
Unlike the Freedom of Information Act 2000, the government decided not to provide a handy list of all the non-state organisations that should be considered to be ‘public authorities’ for the purposes of the HRA. Instead, they decided to leave it up to the courts to determine. Leigh and Masterman comment on this decision:
‘By choosing not to list ‘hybrid’ public authorities under the HRA the Government was virtually inviting a sequel to the litigation over the public/private boundary which had dominated judicial review for the previous two decades... As so often in real life, the inevitable happened. A series of cases before the courts have produced an inconsistent set of standards over which bodies the Act applies to and in respect of what functions. The Law Society and the Solicitors Disciplinary Tribunal were held to be public authorities, but Lloyds of London was held not to be. A housing association was held to be a public authority, as were the managers of a private psychiatric hospital accepting referrals from health authorities, but a charitable foundation offering residential care was held not to be. A private company that had been set up by the council under statutory authority was held to be a public authority... On the other hand, a statutory body of the established church (the parochial church council) has been held not to be a public authority.’
In a particularly controversial ruling in YL v Birmingham City Council, the House of Lords determined that a private care home was not a public authority in the meaning of the HRA, even if it was providing care and accommodation to somebody placed there by the local authority. It seemed to me that the courts put the profit imperative of private care providers before the human rights of residents. This passage, from the Court of Appeal ruling, was particularly inflammatory:
Ms [Cherie] Booth stressed that the members of the [National Care Association] were not charities, like [Leonard Cheshire Foundation], but businesses owned by private investors. They should have the freedom that any other private business might expect, to dispose of its resources in the way that seemed to it most profitable. Constraints imposed on that freedom by Convention rights held by the residents, what the Chief Executive of the NCA described in §16 of her evidence as "rights of occupation having priority over the right of the care home provider to freely deal with his business asset", were inconsistent with the private status of the care homes. 
It is particularly interesting to revisit that passage in the light of what is now happening to the care provider at the heart of the case, Southern Cross. However profitability wasn’t the only issue that concerned care providers. In response to a Joint Committee on Human Rights (JCHR) inquiry into the meaning of public authority, the Salvation Army, the Archbishop’s Council of the Church of England and the Evangelical Alliance also argued against the extension of the meaning of ‘public authority’ to cover their social care activities. In particular, these bodies expressed concern that they would be expected to demonstrate religious neutrality that they felt would compromise their activities. The problem is that the structure of the HRA means that any organisation considered to be exercising functions of a public nature cannot also be considered, by the courts, to have human rights in its own right. This means that if a claim is brought against a care provider as a ‘public authority’, the courts cannot ‘balance’ its own rights to – for instance – religious freedom, or private life. There is no particular reason in the Convention why the HRA had to be structured this way; and I see no reason why these organisations could not appeal to the ECtHR if they felt their own rights were infringed by a domestic ruling.
The ruling in YL v Birmingham City Council caused widespread outcry and there followed a campaign by many third sector organisations, including JUSTICE, Help the Aged, Age Concern, Liberty and the British Institute of Human Rights for parliament to reverse its effects. Although the government had vocally criticised the ruling as contradicting parliament’s intentions in the HRA, it dragged its feet in resolving the difficulties thrown up by it. Two private members bills that sought to reverse the effects of the ruling were not supported in Parliament; my suspicion is they were broader in scope than the government desired. Andrew Dismore, former Labour MP and chair of the Joint Committee on Human Rights, sought to introduce a bill that would clarify the meaning of ‘public authority’ more generally by introducing a list of factors for the courts to consider. One factor that Dismore thought should be considered was ‘the extent to which the state, directly or indirectly, regulates, supervises or inspects the performance of the function in question’. Paul Burstow, then an opposition bencher and now our Minister for Care Services, introduced a bill which would have made all regulated care providers subject to s6 HRA. Both bills had the potential (in Burstow’s case, the certainty) of bringing under the HRA private care providers that did not even receive public funding. Both bills, in effect, require care providers to respect the human rights of service users if they are regulated. The issue of regulation was raised by both sides during the YL hearings. In the Court of Appeal, Lord Justice Buxton expressed himself convinced that the protection offered by regulation by CSCI ‘well exceeded in terms of day-to-day protection for residents anything that they could gain through the application of article 8’ . In the light of yesterday's vote of no confidence in the Care Quality Commission (CQC) by the National Care Association, and highly critical remarks by Stephen Dorrell, chair of the Commons Health Select Committee, that presumption seems rather in doubt these days.
In the event, the government brought in an amendment under s145 Health and Social Care Act 2008: if care homes provided services for people placed under s21(1)(a) and 26 of the National Assistance Act 1948 they were to be considered to be exercising functions of a public nature in the meaning of s6 HRA. This amendment is often celebrated as closing the “loophole” opened up by the YL ruling – but what is less often mentioned are the vast number of people who fall outside its protection, including:
- People in publicly funded care home accommodation under s117 Mental Health Act 1983, funded by the NHS under Continuing Care provisions, or children placed in children's care homes or residential schools under s20 Children Act 1989
- People who receive publicly funded domiciliary care services under the Chronically Sick and Disabled Persons Act 1970 or any other Act, including people in supported living type services which can often resemble care home placements.
- People who fund their own care – or whose care is funded by insurance payments or annuities.
- (And if direct payments for residential care are introduced, they would fall outside this protection as well)
Had Burstow's bill been supported by the government, all adults in these unprotected groups would have had the protection of s6 HRA. Under Dismore’s bill, other groups including children in private care services regulated by Ofsted might also have been covered.
Unprotected groups in publicly funded care services might be indirectly protected by the HRA, inasmuch as the public commissioner of services may have some liability for human rights violations carried out in a private care setting. For instance, in a future hearing of the recent case C v A Local Authority (2011), the claimant will seek damages against the local authority for alleged violations of his Article 3 and 8 rights in a residential school (which I take to be private from the description in paragraphs 1 and 2). It is interesting to consider whether this claim is being pursued against the local authority and not the school because the school were acting under directions from the local authority, or because the legal team doubted whether the school could have been held liable in any case because it was not covered by s6 HRA.
There are three issues here. The first is that without a credible threat of litigation against the care provider themselves, there will be reduced pressure on them to respect the human rights of service users. This is particularly concerning in the light of dwindling CQC inspections, and the scaling back of local authority monitoring of services as a result of austerity cuts. The second issue is that there is a danger that public authority defendants might seek to distance themselves against human rights violations occurring in private care services if they did not result directly from their care plan and commissioning practices. In such circumstances, liability could ‘fall between the cracks’. And the final issue is that self-funders of care services have no obvious recourse for human rights violations at all, as public authorities are unlikely to have been involved in commissioning their care. In 2007 the PSSRU estimated that as many as 40% of older people pay privately for some care services; I would guess this figure is higher now as a result of cuts on local authority social care spending. This situation seems, to me, to stand in tension with the ECtHR considering it arguable that the state is liable for Article 3 and 8 violations that occurred in private settings (Costello-Roberts v UK, 1993 ). As I shall now go on to discuss, it may also throw up particular problems for the deprivation of liberty safeguards.
The ‘YL loophole’ and the deprivation of liberty safeguards
If we examine the text of Schedule A1 which sets out the safeguards, it seems to mirror the way the MCA itself functions, by creating a general defence against liability for any acts done for the purpose of detaining ‘P’, so long as a standard or urgent authorisation for the detention is in force (see s4A MCA and s3 Schedule A1). The question is – if a person is deprived of their liberty but no authorisation is in force, and the managing authority is not a public authority in the meaning of s6 HRA – what offence is being committed? What causes of action are available for a person who was unlawfully detained to claim compensation, as is their right under Article 5(5) ECHR?
The ruling in YL occurred whilst the deprivation of liberty safeguards were going through parliament. In finding that Southern Cross was not a s6 HRA public authority, Lord Scott said:
‘The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises... When the Mental Capacity Act 2005 comes into force acts of that sort, in relation to persons who lack mental capacity, may attract a statutory defence to any civil action (see sections 5 and 6 of the Act). This, however, really does no more than place common law defences of self-defence or necessity on a statutory basis and does not, in my opinion, advance any argument about the "public nature" of the function being carried on by care homes.’ 
One does wonder, rather, whether Lord Scott was aware of the contents of Schedule A1; Baroness Hale certainly was:
‘These will apply to residents in care homes as well as in hospital. The use or potential use of statutory coercive powers is a powerful consideration in favour of this being a public function.’ 
I sometimes wonder if the Lords might have decided differently if the safeguards were already in force. However – whatever has passed between the ruling and now – the fact remains that YL v Birmingham City Council is still a binding precedent that privately run care homes are not public authorities, apart from the exemptions passed in the Health and Social Care Act 2008. As a lower court, the decision would presumably still bind the Court of Protection.
Lord Scott's comments could, perhaps, provide a basis for a circular kind of argument that if a care home is potentially empowered to deprive someone of their liberty by Schedule A1, then they become a s6 HRA public authority. Such a mechanism was proposed by Age Concern in response to the Bournewood Consultation: ‘Any home where people are detained under Protective Care (because they are deprived of their liberty) should be considered to be a public authority’. Obviously this would have to apply even where deprivation of liberty was in fact unauthorised, but potentially could (and should) have been. But even still, Schedule A1 applies only to care homes and hospitals - and so this argument would have no traction for services falling outside the safeguards - supported living, and schools, for instance. Casting the net wider by saying that any setting that deprives someone of their liberty - with or without authority - is a 'public authority', throws up problems of its own. In A Local Authority v A (2010) Lord Justice Munby indicated that there may be exceptional circumstances in which a local authority can ask the Court of Protection to authorise deprivation of liberty that is occurring in the family home . It is highly unlikely that any court would ever want to find the family home to be a ‘public authority’.
Acts done for the purpose of detaining P might engage other aspects of the common law – torts of false imprisonment, or battery, for instance. However, we should be alert to the fact that although the ruling in HL v UK (2004) prompted the introduction of the deprivation of liberty safeguards, it did not ‘reverse’ the ruling in R(L) v Bournewood (1998). The House of Lords ruling in Bournewood presumably still stands as a good legal authority that the detention of compliant but incapacitated adults is not ‘false imprisonment’ unless they are actually (and not potentially) prevented from escaping, and it would still bind the Court of Protection as a lower court.
I contacted the Department of Health a while back to ask what offence they thought was committed if a care provider deprived someone of their liberty without authorisation and they were not a public authority in the meaning of the HRA. The official that responded to me contended that failure to seek authorisation for deprivation of liberty was a breach of statutory duty, presumably under s24 Schedule A1. Schedule A1 does seem to create a strict duty for care homes to seek authorisation where they are depriving someone of their liberty, but is breach of this duty actionable for damages for those unlawfully detained? I’m far from expert in tort law, but it does seem to me that Schedule A1 creates no clear private right of action against managing authorities for breach of statutory duty for unauthorised deprivation of liberty. My primitive knowledge of tort law reminds me that if alternative remedies are made available by a statute, the courts will be unlikely to find an implied right of action for breach of statutory duty. Schedule A1 does create a mechanism to deal with unauthorised detention; a third party can request that the managing authority seek authorisation from the supervisory body, and if they do not then they can request it directly from the supervisory body themselves. This does not create a mechanism to recuperate damages for unlawful detention from the care provider though, so I'm not entirely certain how things would fall. And again, Schedule A1 only applies to care homes and hospitals, and the MCA places other services that might deprive people of their liberty under no strict duty to seek authorisation from the Court of Protection (s4A MCA says only that 'D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court').
I am not aware of any published rulings where the Court of Protection has confronted this complex issue. It seems to me highly improbable that the court has never encountered deprivation of liberty for self-funding residents in a private care home, and we definitely know that the court has found deprivation of liberty to be occurring in private supported living services (e.g. G v E) and schools (C v A Local Authority). The latter cases clearly implicated the local authority; what is less clear is whether the care provider is could ever be directly liable for this. I am reassured that I am not the only person to have pondered this issue. In response to the Bournewood Consultation, the Mental Health Act Commission wrote:
‘...it is not clear that the Department has considered whether patients who self-fund their care in private establishments, either in cash or through insurance schemes, could also be deemed to be deprived of their liberty in certain circumstances. Such patients are probably not, in law, receiving services from a ‘public authority’ that is accountable under the HRA. The legal and rational answers to this question may conflict.’
And in their response to the snappily titled Department of Health consultation on ‘The Mental Capacity (Deprivation of Liberty: Monitoring and Reporting) and (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary residence) (Amendement) Regulations 2009’ the Law Society wrote:
‘This could mean that where a person who lacks capacity and lives in a private care home is being deprived of his/her liberty, they would be denied Article 5 ECHR safeguards because the care home is not a public authority for the purposes of the HRA. Furthermore, it is unlikely that such a detention would be seen as unlawful because the actions of the care home would be in accordance with the common law doctrine of necessity.’
In all the consultation reports surrounding DoLS, I can find no evidence that the Department of Health or the Ministry of Justice addressed this issue directly, except that they stated that Schedule A1 would apply regardless of the 'public authority' status of care providers. This seems, somewhat, to miss the critical point: if they can't be held liable for unlawfully depriving someone of their liberty, why should they bother with the safeguards?
An intellectual puzzle or a matter of real concern?
In the great scheme of things that are wrong with the safeguards, this probably comes pretty low on most people's lists. It's a pretty rarefied and speculative concern, and certainly it doesn't seem to have bothered the Court of Protection overmuch (at least, not in their published judgments). The question is - does this problem have a chilling effect on Article 5 litigation against care providers themselves, and does any such chilling effect in turn have an impact on their compliance with the safeguards?
I'm not really equipped to answer either question here. My suspicion is that it is a problem mostly known to lawyers, and few care providers will have pondered it. The Mental Health Alliance and the CQC have expressed concern at widespread non-compliance with the requirement upon care providers to seek authorisation under the safeguards, particularly among care homes. The Mental Health Alliance write:
‘There is also very little incentive at present to improve the level of procedural compliance, since the likelihood of any legal challenge is minimal.’
But the likelihood of legal challenge is minimal for a whole host of reasons, not just the 'meaning of public authority' issue. In the first place, most people who are deprived of their liberty in care homes without authorisation will be very poorly placed to bring this to the attention of the relevant authorities. We have already seen this in the extremely low uptake of the third party referral mechanism under s67 Schedule A1:
(See this post on statistical data for more lengthy discussion). As I've written before, very very few cases relating to deprivation of liberty in care settings end up before the court. Some of the reasons for this are very well illustrated by the case of Steven Neary, which I've written about here. And fewer still pursue a claim for damages.
In fact, the unlikelihood of cases of unlawful detention ending up before the courts might be one reason why this matter has never been tested before a judge. In any case, the approach of the Court of Protection, which is where deprivation of liberty cases typically end up, is more inquisitorial and welfare oriented than adversarial and damages oriented. The court has expressed the view that it has powers to grant damages for human rights violations in YA(F) and A Local Authority & Ors , but has tended to refer such claims to the Queen's Bench division in case these powers are disputed on appeal. The Court of Protection does have undisputed powers to declare whether a person's rights were infringed under s15 MCA, and so it is possible that the issue might have come up there.
I am unaware of a published case where the court has been asked to declare whether a person was unlawfully detained by a private care provider and no public authority was involved in setting up the package of care. This cannot be because such cases are not occurring; it seems much more likely to be because they are not coming before the court. It seems rather unfair to hold a local authority liable in damages for unlawful detention in a package of care which it had no involvement in until after the event. But if the care provider cannot be held liable because it is not a public authority, then how can an Article 5(5) damages claim be pursued? Eventually, logic dictates, this issue must come before the courts. When they do, it will be interesting to see whether they touch upon this debate at all.