The decision of Mr Justice Charles in the case of Staffordshire County Council v SRK  EWCOP 27 has impacted on the practices and responsibilities of professional Deputies in cases where there is a substantial and privately funded care regime.
The facts of the case
The case raised the question of whether the establishment of a care regime for an individual lacking capacity was a deprivation of liberty.
In this particular case the financial Deputy had received a substantial damages award on behalf of the individual lacking capacity, SRK. The damages award funded the purchase of an adapted bungalow and the establishment and continuation of a 24/7 care regime. SRK was catastrophically injured and had to be under constant supervision and control and lacked capacity to consent to the care arrangements.
The care package was funded in full by the damages award, without input from the local authority, and was considered by the Deputy and all who were concerned SRK’s welfare as being consistent with his best interests.
The issue to be decided by the Court of Protection
The Court of Protection was required to decide whether SRK’s private care regime amounted to a deprivation of liberty within the meaning of Article 5 of the ECHR and whether a welfare order from the Court of Protection was required to authorise such a deprivation of liberty.
To fall within the scope of Article 5 and for there to be a deprivation of liberty, there must be three elements present:
- An objective confinement in a particular, restricted place for a not negligible length of time
- A subjective lack of consent
- The attribution of responsibility to the state
In this case, there was agreement between parties as to the objective confinement and subjective lack of consent. The question was whether the arrangements could be said to be attributable to the state given that they were made without the involvement of the local authority.
Mr Justice Charles concluded that a welfare order was needed to protect SRK from an arbitrary detention and to avoid a violation of the state’s positive obligations under Article 5 of the ECHR. This was based on the premise that the state knew or ought to have known of the situation.
Future practice and implications for local authorities and deputies
Although the decision places the onus on the local authority to act and to assume responsibility for a potential deprivation of liberty, the deputy also has an important role.
In a situation where there is a fully privately funded care package to which the protected party cannot consent, there are the following positive obligations on the deputy and local authority:
- The deputy must notify the local authority adult safeguarding team of the care arrangements in place. This will then trigger an attribution of responsibility to the state under Article 5
- Following notification, the local authority must investigate the individual circumstances of the case
- The local authority must consider whether any adjustments can be made to the care package in order to prevent the deprivation of liberty. If it remains following investigation, an application should be made to the Court of Protection for an order to authorise the deprivation of liberty
There has been some discussion and commentary surrounding whose duty is it to make the application to the Court of Protection – the local authority or the deputy.
It has been suggested by some that Mr Justice Charles’ judgment implies a responsibility fell on the person notifying to make the application to Court to “ensure that the situation on the ground was authorised.”
However, under Article 5, if a deprivation of liberty exists, the positive obligation is imposed on the local authority (and nobody else) to take steps to authorise the deprivation of liberty. These obligations cannot be transferred to the deputy or another individual. For a local authority to fail to act on a notification may be a breach of their positive duties.
It is likely that the financial deputy will be involved in the provision of information to the local authority to assist in the making of their application. However, if a financial deputy were to make an application to the Court, to be involved directly in matters relating to an individual’s welfare, the deputy may be criticised for undertaking work outside of their authority and remit as property and affairs deputy.
This judgment will inevitably result in an increase in applications to the Court and will put additional pressure on both Court and local authority resources. For deputies, periodic reviews of privately funded care packages will be necessary to ensure that local authorities are kept informed and notified of care arrangements and any proposed changes which may result in the need for an application to Court.