The law around lawfully depriving an individual of their liberty in order to keep them safe and/or to meet their care needs, is complex and is often an issue to be addressed by those involved in P’s welfare and care decisions i.e. medical professionals and social services.
However, a financial deputy, privately funding a care package in P’s home (or any other setting for that matter) will also need to take certain steps to ensure that any deprivation of liberty which arises as a result of the package, or could potentially arise in the future, is notified to the local authority and authorised by the COP.
In summary, a deprivation can arise if, as a result of the care package, P is under continuous supervision and control, not free to leave and lacks capacity to consent to these arrangements.
In such circumstances, a local authority (i.e. social services) has a duty to ensure that any arrangement resulting in a deprivation is conducted in accordance with the relevant safeguards set down in the Mental Capacity Act 2005 (MCA). Also known as DoLs. Those safeguards seek to ensure that people are cared for in a way that does not inappropriately restrict their freedom. This is to ensure that no breach of Article 5 of the European Convention on Human Rights (ECHR) arises. Article 5 provides that no one should be deprived of their liberty in an arbitrary fashion.
This is so, even where the care is being funded privately and not by the state. Why you might ask? Because, in summary, the state has an indirect duty to protect a person against interferences with his or her liberty by a private person.
During the course of a financial deputyship, it may be necessary to consider moving P out of a hospital, care home or supportive living arrangement into their own property with adequate care. However, the care package to be implemented may give rise to a potential deprivation. For example, it might be necessary to install locks or alarms on windows and doors to prevent P leaving the property unsupervised, and P may lack capacity to consent to those arrangements.
A care package funded privately by a deputy is often implemented on the recommendations of an entirely privately funded clinical team. As such, social services and therefore the local authority will have very little to no input in the care arrangements.
The issue was addressed in the case of the Staffordshire County Council v SRK.
In summary, SRK suffered multiple injuries including a brain injury following a road traffic accident, as a result of which he required 24 hour care and assistance 7 days a week. SRK’s deputy received significant damages which allowed them to purchase a property and fund a private care package. The care regime created deprivation. The local authority had no knowledge of this case until it received a letter from the deputy informing it that SRK may be deprived of his liberty. The issue arose as to whether the state was responsible, directly or indirectly, where P’s package was privately funded. It was held that it was. The case, was appealed unsuccessfully, by the Secretary of State who argued that the detention was not ‘attributable to the state’ because SRK was cared for in his private home without any involvement by any public body.
As such, property and affairs deputies should be aware that a privately funded care arrangement may give rise to deprivation and, in the first instance, should write to the local authority for a DoLs assessment. Unless the situation on the ground can be altered in a way that means that P is not being deprived of his liberty, then the local authority will need to make an application to the COP to seek authority for the deprivation.
If the Local Authority’s assessment concludes that P is deprived of his liberties or if there is any uncertainty over the matter, an application should be made to the Court and P should not be moved until the Court has authorised the proposed care arrangements. If the care package is already in place, then an application should be made urgently.
Where there is agreement that the measures are the least restrictive, then a streamline paper procedure for a welfare order should be appropriate. Once authorised, the deputy should ensure that the DoLs is kept under review by the relevant decision maker.
Specifically, where P has a personal injury claim, the Court awarding the damages and the COP when appointing a deputy or considering a report on settlement, should consider whether the care package gives rise to a deprivation. If so, the Court should provide appropriate directions. The costs of a possible application and/or the deputy’s work associated with seeking an authorisation should be factored into any compensation award.
In practice, a deputy might find that the local authority does not action a referral or they may claim that it is not their responsibility, or even that P should cover the cost of the application. This is not correct and every effort should be made to encourage the local authority to proceed with the application. If they still refuse, the deputy may need to consider making an application to the COP for directions.
If the local authority fails to take steps, it may face a claim for damages. Where less restrictive measures could have been used, damages may be substantial.
The Staffordshire case, and other recent decisions, have increased the categories of people falling into the safeguards and have therefore placed a huge burden upon the local authorities and Court resources at a time when they are already significantly stretched.
The Safeguards have faced criticism since they were introduced. The Law Commission reported on the issues in March 2017. On the 14 March 2018, the Government issued a positive response, agreeing that the safeguards needed to be replaced. However, there is no timescale for the reforms and given that Parliament’s priorities are being diverted elsewhere, it is unclear when this is likely to happen. The Law Commissions report can be found here and the Governments response here.