We blogged on this topic during the summer - see it here. The case was appealed to the Court of Appeal and judgment was handed down just before Christmas.
Readers will recall that, at first instance, the court decided that the state was imputable in any DOL arising out of private care arrangements and therefore that it was correct that the LA should have made an application to the Court of Protection for a welfare order when they became aware of the case. He noted that the court had awarded personal injury damages, the Court of Protection appointed a Deputy to manage those damages and the Deputy/Trustees/Attorney should be aware of DOLS and Article 5 ECHR.
Mr Justice Charles had been concerned that, without such an order being made, there were insufficient procedural safeguards to satisfy the positive obligations of the State under Article 5 (1).
The Secretary of State for Justice appealed the decision. It was argued firstly that the combination of existing civil and criminal law and the obligations of public bodies to safeguard vulnerable individuals would satisfy the positive obligations of the State. Secondly it was argued that the responsibility for a “private” deprivation could not be attributable to the State as there was no reason for the local authority or any public body to have any suspicions about abuse.
The appeal was dismissed. However the Court of Appeal commented that, whilst an application to the Court of Protection is necessary in the present state of law and practice, such a step might not be essential if a different legislative and practical regime were to provide for proactive investigation by a suitable independent body and periodic reviews.
We know the Law Commission have pushed back recommendations in respect of new legislation until March which you can find out more here.
So watch this space!