Home based privately funded care packages may amount to a deprivation of liberty

11 Jan 2017

Secretary Of State For Justice V (1) Staffordshire County Council (2) SRK (by his litigation friend, SK)

Where a claimant lacked capacity and was unable to make decisions about where to live, his care or treatment, a care regime involving constant monitoring could objectively amount to a deprivation of liberty. That deprivation had to be authorised under procedures in place to ensure the UK complied with obligations under the European Convention on Human Rights ('the convention'). The procedures were triggered when the State became aware of the deprivation. That awareness would be imputed to the State as a consequence of the court awarding damages or the court of protection’s appointed Deputy, either or both, being aware of the deprivation and consequently expected to notify the authority to trigger the authorisation process. Any authorisation would be of limited duration requiring renewal, usually annually. The decision only applies to adults lacking capacity in England and Wales.

The facts

In 2005, SRK was a road accident victim. He sustained brain injury, was wheelchair bound and required assistance with all aspects of daily living. Substantial damages were awarded. His care, 24hrs/7 days a week, was arranged by a specialist brain injury case manager and he had to be under continuous supervision and control. The care was delivered in his own adapted home by private carers without any State involvement. He lacked capacity and in particular the capacity to consent to his care arrangements. Irwin Mitchell Trust Corporation (IMTC) were appointed as Deputy.

In January 2015 IMTC wrote to the local authority suggesting that the arrangements for SRK’s accommodation and care amounted to a deprivation of liberty. The council, previously unaware of SRK or his private care arrangements, carried out an assessment and concluded that SRK was being deprived of his liberty for the purposes of the Mental Capacity Act and Article 5 of the European Convention on Human Rights. Consequently the authority was required to seek a welfare order from the Court of Protection authorising the deprivation. It began proceedings in August 2015, leading to the order that was given by Charles J as Vice President of the Court of Protection in May 2016.

Prior to the final order in May, by an interim order in the previous November, the Secretary of State for Justice was joined to the proceedings. That was because the possibility that privately funded and located care regimes delivered to persons without capacity, could trigger the States duties in respect of deprivation of liberty would potentially have far reaching consequences for state bodies already dealing with high demands from earlier developments relating to the law on liberty deprivation. The welfare order issued in May 2016 was on the basis that the States duties were triggered. The Secretary of State for Justice appealed against the making of that order.

Deprivation of liberty

The right to liberty is contained in the European Convention on Human Rights.

The European Convention on Human Rights

Article 1 of the Convention provides that States shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention. That section includes Article 5 which states:

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.
(e) the lawful detention…..of persons of unsound mind.

Imputation to the State

For a deprivation of liberty to arise, three components must exist[1]

1. An objective component of confinement in a particular restricted place for a not negligible length of time
2. A subjective component of lack of valid consent; and
3. The attribution of responsibility to the State.

The State is under a positive obligation to act upon potential deprivations that it is involved in or of which it becomes aware and to ensure that any actual deprivation is subject to an adequate process of authorisation. It is this attribution to the State which triggers the adult safeguarding role and obligations to investigate, support and consider making an application to the court.

The convention right not to be deprived of liberty arises in many situations beyond the consequences of traumatic brain injury. A deprivation triggering the State’s duties may arise consequent on care and treatment in a care home or hospital. It may now also arise where privately arranged and funded care is provided in a claimant’s home. What amounts to a deprivation is not always clear, but a test for the objective component in number 1 above, arising from a previous Supreme Court decision[2]focused on whether the person is subject to continuous supervision and control, and whether the person is objectively free to leave (ignoring whether, due to disability, they would in fact be able to leave).

In SRK it was common ground that components 1 and 2 existed. In effect it was agreed that the care regime amounted to a deprivation within the objective definition of component 1.

The third component formed the basis of the Government’s appeal, namely that having no involvement in the provision of the care, attribution of responsibility to the State was absent and therefor a duty to start to engage the authorisation procedures did not arise.

Authorisation procedures

The UK has procedures to ensure that any deprivation of liberty of a person unable to make decisions themselves about where they live, care or treatment received, is subject to a process of scrutiny. This will often be the case where severe brain injuries need constant supervision and care accompanied by loss of capacity.

One of two procedures applies dependent on the claimant’s location.

  • For individuals in a care home or hospital, the Deprivation of Liberty Safeguards (DoLS), annexed to the Mental Capacity Act 2005, provide a detailed process for the authorisation and review of a notified deprivation, overseen by a local authority. This procedure is set out in schedules to the Mental Capacity Act and a supplemental Practice Direction (10AA) in the Court of Protection rules)
  • The DoLS does not apply to individuals still resident in their own homes (as SRK was). In such cases the deprivation of liberty must be authorised by a specific welfare order made by the Court of Protection. A streamlined process has developed called the “Re: X” procedure which involves application to the Court of Protection using a particular form COLP DOL10[3].

Although the purpose of the processes is to achieve authorisation for the deprivation, and ensuring it cannot occur without an appropriate review process, the court will need to be satisfied that the arrangements leading to the deprivation are in the claimant's best interests and that other arrangements could not be made which did not objectively amount to a deprivation or were less restrictive.

It is unlawful for a person to deprive another of his liberty without authorisation having been granted under one of the two procedures above. Whilst the authorisation is obtained by the local authority, there is a duty on those involved in the arrangements to notify the local authority so that authorisation is obtained. Charles J’s judgment specifically singled out Deputies as falling under that duty as well as ensuring that the arrangements were regularly reviewed as to best interests and whether a less restrictive option was available.

Court of Appeal

The appeal by the Secretary of State to the Court of Appeal centred on the issue of imputation or attribution of responsibility to the State i.e. the circumstances in which the State, not having been involved in care and treatment, nevertheless ought to be aware of the deprivation of liberty. Charles J had found that knowledge could be imputed as the court awarding damages, the court of protection when appointing a deputy, and the deputy or trustee holding the damages, were under a duty to make the local authority aware of any arrangements that could amount to deprivation.

The Court of Appeal dismissed the appeal upholding the issuing of the welfare order and the basis on which it was found that the State was or ought to have been aware of SRK’s care arrangements and the consequent deprivation.

Relevance to catastrophic injury claims

  1. Lack of capacity and care regimes involving constant supervision and monitoring are frequently the consequence of severe brain injury. The inability of the claimant to make decisions about his location, care and treatment, in tandem with the confinement under the care regime raise deprivation of liberty issues
  2. The involvement of the court awarding damages, the Court of Protection appointed deputy and/or deputies and trustees managing awards will create a duty on them to report potential deprivations to a local authority. Knowledge of the deprivation will be imputed to the local authority triggering the positive duties to ensure that the deprivation is lawful.
  3. Specific reference is made to the need to factor into the calculation of damages awards the costs of the Deputy’s involvement in notifying the local authority and liaising with them during the process to  obtain authorisation.
  4. Following authorisation the arrangements need to be kept under review. Ordinarily authorisations only last 12 months. That does hold out the possibility of additional Deputy costs being factored in on a recurring annual basis.
  5. A difficulty may arise if the local authority does not act upon the authorisation. It is possible that the person making the notification should seek authorisation to ensure there are not unlawfully depriving the claimant of his liberty.
  6. There is a streamlined procedure available for seeking welfare orders – the Re X procedure. This can be used (as was used in SRK’s case) to obtain an authorisation for care regimes in the claimant’s home. Any provisions within claims for Deputy costs should reflect this procedure. Expert witness evidence should consider how such a claim is presented.
  7. Consideration must always be given by those responsible for the claimant,  to the need for any arrangements to be in the best interests of the claimant and also as least restrictive as possible. If a care regime is, in the view of a defendant, an excessive one, a challenge that it unnecessarily creates a deprivation of liberty or could avoid that being less restrictive,  may support a more broader challenge to the composition of the care regime.

The future of deprivation of liberty procedures

In closing it should be mentioned that the current approach to deprivation of liberty safeguards has been criticised on a number of levels and over a long period. The Law Commission began a review of the safeguards in 2014, producing a consultation paper in July 2015. In 2016 an interim statement of intentions was produced leading to a planned final paper and Draft Bill in early 2017.

The original scope was the DoLS applying to care homes and hospitals. It was subsequently extended to cover all situations, including in a person’s home, to achieve one comprehensive approach. The interim statement contained proposals for a “more straightforward, streamlined and flexible scheme for authorising deprivation of liberty” together with a proposed role of an Approved Mental Capacity Professional to scrutinise proposed deprivations of liberty.

It follows that the current approaches may well change. Something to bear in mind if significant costs are built into claims for Deputy costs – particularly if to be enshrined in a periodical payment order.


[1] These were set out in the Supreme Court case of “Cheshire West” as representing the essential character of a deprivation of liberty and arise from Storck v Germany [2005] 43 EHRR 6.

[2] Cheshire West and Chester Council v P and another [2014] UKSC 19

[3] https://formfinder.hmctsformfinder.justice.gov.uk/cop-dol10-eng.pdf. This version dates from 1/12/16 and reflects the first instance decision

 

Kerris Dale
Partner
T: 029 2044 7640
E: kerris.dale@blmlaw.com

Jenny Moates
Consultant
T: 020 7865 3342
E: jenny.moates@blmlaw.com

 

Emma Eccles
Associate
T: 0161 838 6986
E: emma.eccles@blmlaw.com

Emmet Quigley
Associate
T: 0161 838 3959
E: emmet.quigley@blmlaw.com

 

Kerris, Emma, Jenny and Emmet are members of the Capacity and Court of Protection Subject Matter Expert Group within BLM’s Catastrophic Injury Group.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Cardiff


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