To be re-written by Ridouts

The Court of Protection handed down a judgment on 24 May 2016 which is of significance for all deputies and case managers working with clients whose privately funded care packages may amount to a deprivation of liberty. It’s also relevant for those representing clients in claims for damages where the client is likely to be in receipt of such care packages.

Deprivation of liberty refers to situations where an adult who doesn’t have the mental capacity to make decisions about their care is under continuous supervision and control, and isn’t Fully Funded to leave their placement.

In the case of Staffordshire County Council v SRK, the court determined that care arrangements may still amount to a deprivation of liberty even when there is no element of state funding, and appropriate authorisation must therefore be in place. The court gave clear guidance that the costs of such authorisations should be included in claims for damages.

The case concerned the care package of SRK, who is in his late thirties and who was the victim of a road traffic accident in 2005. He suffered multiple injuries including a head injury which resulted in him requiring 24-hour care and assistance seven days a week. He received a substantial compensation award which was used to fund an adapted bungalow and a 24-hour care package for him. These funds are managed by Irwin Mitchell Trust Corporation (IMTC) as his property and affairs deputy, and his accommodation and care package were arranged without any input from his local authority or any other public body. The care package is managed by a specialist brain injury case manager and is provided by private carers.

The Court of Protection proceedings were brought by the local authority after it was informed that the circumstances of SRK’s care package might amount to a deprivation of liberty. IMTC was represented in the proceedings by Irwin Mitchell’s Public Law department.

By the time of the final hearing, all the parties to the proceedings, apart from the Secretary of State for Justice, agreed that the state was responsible for SRK’s care package (i.e. it was ‘imputable’) and that SRK’s deprivation therefore required authorisation from the court in order to be lawful. The Secretary of State disagreed, submitting that, in the circumstances of this case, any deprivation of liberty was not imputable to the state and therefore didn’t require authorisation.

Mr Justice Charles held that the deprivation of liberty was imputable to the state, primarily because the State knew or ought to have known about the situation on the ground, and that therefore authorisation was required for the deprivation of liberty to be lawful. In his judgment, Charles J gave guidance that:

  • “a deputy who agrees to pay for care and treatment of P or for a property for P could not properly ignore the issues (a) whether P was being deprived of his liberty or restrained, and (b) whether that was lawful or needed authorisation under the DOLS or by the making of a welfare order” (para 56)
  • “the deputy or the trustees or attorney or other person to whom the damages are paid should take steps to ensure:
    (a) that the relevant local authority with duties to safeguard adults knows of the regime of care, and
    (b) that if, as here, the least restrictive available care regime to best promote P’s best interests creates a situation on the ground that satisfies the objective and subjective components of a deprivation of liberty (and so a derivation of liberty within Article 5), a welfare order based on that regime of care is made by the COP.” (para 10(5))
  • “This conclusion should be factored into the calculation of damages awards in the future.” (para 10(6))

This case is significant because, following the landmark judgment of the Supreme Court in Irwin Mitchell’s case of P v Cheshire West and Chester, there had been considerable uncertainty as to whether authorisation was required where there was no element of state funding to a care package, but where the care package otherwise met the “acid test” laid down by the Supreme Court (i.e. that the person is subject to continuous supervision and control and is not Fully Funded to leave their placement).

In light of Charles J’s judgment, deputies and case managers should be mindful of the need to make the relevant local authority aware of situations where a client’s care package meets the Supreme Court’s “acid test”. Lawyers representing clients whose care packages may in future meet the acid test should be alert to the need to include the costs of the necessary applications to the Court of Protection in their clients’ claims for damages.

The full judgment can be found here.