The Court of Protection has concluded that care arrangements whilst privately funded may still lead to a deprivation of liberty which needs to be approved by the state under a welfare order.
‘Deprivation of liberty’ is a situation where an individual who lacks mental capacity is under constant supervision and control and is not free to leave.
The landmark case of ‘Cheshire West’ set out the circumstances where a deprivation of liberty occurs, including the fact that the deprivation is attributable to the state. In those circumstances, Deprivation of Liberty safeguards should be effected or a welfare order in The Court of Protection be obtained. The extension of these rules to a private arrangement has significant impact on local authority’s responsibilities and consequently resources.
In Staffordshire County Council v SRK, Charles J sitting in The Court of Protection determined that private arrangements for care may still lead to deprivation of liberty, even when there is a lack of state funding, and therefore appropriate approval by state authorities must still be in place.
SRK was involved in a serious road accident in 2006 which left him with multiple head injuries. This led to him requiring round-the-clock assistance. His compensation after the accident was invested in adapting a bungalow for his care and providing 24-hour private assistance, arranged with no input from a local authority. The Court had approved the compensation and appointed a property and affairs deputy.
The Secretary of State for Justice argued that the private arrangement did not require authorisation from the state in the circumstances of the case.
The final decision was made that the State ought to have known about the situation on the ground because the court had; a) awarded damages, b) appointed a deputy, trustees and/or attorneys to make decisions on the application of the damages in the patients’ best interests.
This meant that the state could not successfully say that it has no knowledge of the situation. The Local authority with an adult safeguarding role should’ve known of the situation, triggering an obligation to investigate, support and consider applying to court for a welfare order.
This is a significant case because it has introduced a level of certainty about whether and how authorisation by the State is required when there is deprivation of liberty in privately funded care.
Deputies and case managers should now consider alerting local authorities of situations where a private care package leads to continuous supervision and therefore a deprivation of liberty.
For help on deprivation of liberty safeguards, contact our COPE team, who provide quality law advice for vulnerable adults.