Councils could be forced to make hundreds of court applications to authorise the deprivation of liberty of people whose care is privately arranged through personal injury compensation deals, following a court ruling.
In the case of Staffordshire council and SRK, Justice Charles found the deprivation of liberty of a man [SRK] who received 24-hour specialist care from private providers was ultimately the state’s responsibility and needed to be authorised. The care package was funded from damages awarded as part of a compensation claim after the man sustained brain damage in a car accident.
There was no local authority or NHS commissioner involved in arranging the man’s care and the judge was asked to consider whether the care arrangements met the deprivation of liberty threshold, given a key element of the test is whether the care arrangements are the responsibility of the state.
Justice Charles concluded that the State “knows or ought to know” about this class of cases because a court awards the damages and, when appointing a deputy or other person to whom damages are paid, the Court of Protection should ensure the relevant council knows about the care arrangements as part of their adult safeguarding duties. The state therefore has a responsibility to ensure any deprivation of liberty is authorised, he found.
The judge estimated there were at least 250-300 similar cases in the country similar to SRK and warned the number could be considerably higher. He said the potential additional costs that are likely to be incurred from his ruling should be factored into personal injury proceedings in the future.
Commenting on the judgment, Alex Ruck-Keene, a barrister specialising in capacity law noted in his blog that while the judgment indicated at points that it could be the role of deputies to make the application it “strongly suggests that the local authority should be astute to consider whether it must do so as an aspect of their safeguarding duties”.
He added: “It is not entirely easy to see when, if the state has knowledge of a private deprivation of liberty, the local authority with safeguarding responsibilities will not be under an obligation at least to consider seeking a welfare order so as to ensure that the individual in question is not subject to an arbitrary deprivation of liberty.”
The judgment adds to the pressure on local authority deprivation of liberty caseloads, which have risen tenfold since the Supreme Court’s landmark ‘Cheshire West’ ruling in March 2014. That ruling effectively lowered the threshold for what constitutes deprivation of liberty in care and triggered a flood of cases requiring authorisation. Deprivation of liberty in care homes or hospitals is authorised via the Deprivation of Liberty Safeguards. In other settings, such as community care packages, councils must apply to the Court of Protection to authorise any deprivation of liberty.
About the SRK case
The man, referred to as SRK, was in his late thirties. He was in a serious road traffic accident in 2005 resulting in head injuries. He also suffered from epilepsy. He lived in an adapted bungalow and had round-the-clock support from private carers, overseen by a specialist case manager.
Justice Charles described his situation as a private deprivation of liberty: the arrangements and costs were administered by the deputy, with no input from the local authority, Staffordshire council.
Before the Cheshire West ruling in March 2014, the deputy notified Staffordshire council about SRK’s situation and that it may amount to a deprivation of liberty. Social workers carried out assessments before and after the Cheshire West judgment and in August 2015, the council applied to authorise SRK’s situation using the ‘streamlined’ Re X process.
In its paper application, Staffordshire argued that SRK “lacks capacity to make decisions regarding his care and residence and that the care package being provided to SRK (and so SRK’s care regime) is the least restrictive available option to best promote his best interests”.
The man’s brother and sister, who was acting as his litigation friend, agreed with the council’s position.
However Staffordshire’s application was transferred to Justice Charles to decide whether the deprivation of liberty was attributable to the state.
Justice Charles ruled it was and authorised the deprivation of liberty. He did so with “real reluctance” and voiced concerns that in many cases “a further independent check by the Court of Protection will add nothing other than unnecessary expense and diversion of private and public resources which would be better focused elsewhere”.
The judge argued, however, that he needed to follow the “cautious approach” taken in Cheshire West as not all of those lacking capacity and with a similar regime to SRK would have supportive family and friends, and not all deputies would act the same way.
The ruling would “focus the minds” of those involved on the issues around capacity and ensure regular reviews, investigation, supervision and regulation to minimise “misjudgements and professional lapses,” he added.
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This is one for the Law Commission to look at in its ongoing review. The judge is almost certainly right that cases such as there meet the Cheshire West acid test of objective deprivation. It appears however that this an most similar cases are non-contentious and the local DoLS process would be entirely appropriate and proportionate. That however can’t currently be used as the person is in a private domestic dwelling (a bungalow) and not in a registered care home. Surely it is inappropriate for all these cases to go to the Court of Protection but that is the short-term implication.
It never ends, does it? Someone ends up in psychiatric hospital, hoping to get better, then for some reason, as per usual, at least one person in any CMHT team, ruins it. Why do things only get worse instead of better, as far these mental health teams are concerned? I could say the same about social workers. You can’t expect patients to make any sort of recovery, unless you put things right, for the sake of the patient. This is why they have best interests assessors, and advocates. Everyone just do the right thing and put the patient first. Otherwise it will come back to bite you ten-fold in the near future.