Page 239 - Demo

o The persons compliance or lack of objection to the living arrangements
o The "relative normality" of the placement
o The reason or purpose of the placement
2. Has the person refused consent to the con nement or is the person
unable to consent because they lack capacity to do so?
3. Can it be said that the deprivation of liberty is one for which the state is responsible? (state imputability) This can arise in one of two ways:
o Direct involvement of a public authority in the individual’s detention e.g. the provision of care in a care home, hospital, supported living or where the local authority helps arrange or pay for care in the persons own home
o By violating the state’s positive obligation to protect individuals against a deprivation of their liberty carried out by private persons
TO WHAT EXTENT DO "PRIVATE" ARRANGEMENTS FALL WITHIN THE SCOPE OF THESE RULES?
For there to be a deprivation of liberty under Article 5 the deprivation must be "imputable" to the State. Following the case of Cheshire West there has been much discussion about whether people living in a private setting with no assistance from the local authority are outside the scope of Article 5, as the State is not directly responsible for the deprivation.
As mentioned above, there is a positive obligation on the state to protect individuals against a deprivation of their liberty carried out by private persons, but there is currently no guidance as to the precise scope of these obligations on local authorities and NHS bodies.
The current feeling is that if a local authority knows or ought to know that
a vulnerable adult is subject to a deprivation of their liberty by a private individual, the positive obligations under Article 5 will be triggered. This means that the local authority will need to investigate the deprivation and, if there are no reasonable measures by which the deprivation can be brought to an end, the
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