"This case concerns an individual SRK who was severely injured in a road traffic accident. The effects of those injuries are that (a) he lacks capacity to make decisions on the regime of care, treatment and support that he should receive (SRK's care regime), and (b) applying the approach in Cheshire West (see Surrey County Council v P and others; Cheshire West and Chester Council v P and another, ), SRK's care regime creates, on an objective assessment, a deprivation of liberty. SRK was awarded substantial damages that were paid to his property and affairs deputy (the third Respondent IMTC). He lives at a property that has been bought and adapted for him. His regime of care and support there is provided by private sector providers. The damages funded that purchase and adaptation and fund that regime of care. The issue is whether this situation on the ground is a deprivation of liberty that has to be authorised by the Court of Protection (the COP) by it making a welfare order. The test that the COP would apply in making such an order is whether SRK's care regime is the least restrictive available option to best promote his best interests. The same test applies to the decision makers on the ground. It is common ground that at present SRK's care regime satisfies that test."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Staffordshire County Council v K and others
2016 March 10; May 25
Mental disorder — Incapable person — Deprivation of liberty — Severely injured adult lacking mental capacity to make decisions as to care and residence — Deputy appointed to manage property and affairs — Damages award used by private sector providers to provide residential property, care and support — Care regime amounting to objective deprivation of liberty — Whether deprivation of liberty to be imputed to state — Whether welfare order required to ensure lawfulness of care regime — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5 — Mental Capacity Act 2005 (c 9) (as amended by Mental Health Act 2007 (c 12), Sch 9, para 10(4)), ss 5, 16, 64(5)(6)
An incapacitated adult (“K”), who had been severely injured in a road traffic accident, was awarded substantial damages in court proceedings which were used by his property and affairs deputy, a private trust corporation, to provide a specially adapted residence and to fund the regime of care and support provided by private sector providers. The local authority, having been informed of the arrangements for K’s care and the arrangements having been registered with the Care Quality Commission, applied to the Court of Protection for a welfare order under section 16 of the Mental Capacity Act 2005. The parties accepted that the arrangements constituted a deprivation of liberty satisfying two of three components of a deprivation of liberty within article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, but the Secretary of State contended that the third component, namely the attribution of responsibility to the state, did not apply to the privately funded and arranged care regime (and to others in an equivalent position), so that the care regime could lawfully be put in place without a welfare order being made under the Act.
On the local authority’s application—
Held, application granted. (1) Although the steps taken by the local authority and the Care Quality Commission did not amount to direct involvement which made the state responsible for K’s (private) deprivation of liberty within article 5 of the Convention, the deprivation of liberty was attributable to the state in that it knew or ought to have known of the situation on the ground, since (a) the court awarding damages, (b) the court when appointing a deputy to hold and manage them and the deputy and (c) trustees or an attorney to whom a damages award was paid and who had to make decisions on its application in an incapacitated person’s best interests, all ought to be aware that the regime of care and treatment of persons in an equivalent position created a (private) deprivation of liberty within article 5. That knowledge of the courts meant that the state had that knowledge, or could not successfully say that it did not. Accordingly, as a result of the private arrangements and funding, a deprivation of liberty within article 5 existed which fell within the definition of a deprivation of liberty in section 64(5) and (6) of the 2005 Act, was not authorised by section 5 and was one to which others could not consent (paras 128, 131–135, 152–153, 156). (2) Absent a welfare order under the 2005 Act, in such a case as K’s, where the envisaged and actual application of a damages award created a (private) deprivation of liberty within article 5 of the Convention, and to which the deprivation of liberty safeguards in Schedule 1 to the 2005 Act did not apply because the incapacitated person was not in a hospital or care home, there was not a sufficient decision-making process and independent check to guard against arbitrary detention and so to satisfy the positive obligations of article 5 and its spirit. Accordingly, a welfare order was necessary to provide an article 5 compliant procedure (paras 9–10, 50, 140, 143–146).
HL v United Kingdom (2004) 40 EHRR 32, Storck v Germany (2006) 43 EHRR 6, In re A and C (Equality and Human Rights Commission intervening), Surrey County Council v P (Equality and Human Rights Commission intervening) , SC(E) and In re D (A Child) (Deprivation of Liberty)  1 FLR 142Not on Bailii considered. Steps to be taken by a court appointed deputy in such cases (paras 56–59).
Nageena Khalique QC (instructed by Legal Department, Staffordshire County Council) for the local authority.
Sam Karim (instructed by Stephensons Solicitors LLP) for K, by his litigation friend SK, by written submissions.
Parishil Patel (instructed by Irwin Mitchell, Sheffield) for K’s deputy.
Rachel Kamm (instructed by Treasury Solicitor) for the Secretary of State.
Reported by: Jeanette Burn, Barrister
[CPD Sep-Oct 2017 (MCA)]