This article looks at whether Deprivation of Liberty Safeguardings (DOLS) can be applied to cases where the Protected Party resided within their own home and where a care regime had been established. A full judgment can be found by clicking on this link: Staffordshire County Council -v- SRK, RK, Irwin Mitchell Trust Corporation and the Secretary of State for Justice
Background
SRK was injured in a Road Traffic Accident and as a result SRK lacked capacity to make decisions about the care, treatment and support that he should receive. SRK was awarded a substantial settlement that were released to his Property and Financial Affairs Deputy, Irwin Mitchell Trust Corporation.
SRK’s Deputy purchased and adapted a property for SRK to live in. SRK’s settlement award was also used to fund a care regime whilst SRK resided in the property. SRK’s care was received from private sector providers.
Proceedings
In accordance with Cheshire West, SRK’s care regime was subject to a Deprivation of Liberty (DOL). In Cheshire West, the Court clarified an ‘acid test‘ for what constitutes a DOL. The acid test stated that an individual was deprived of their liberty, for the purposes of Article 5 of the European Convention on Human Rights (the right to liberty and security), if all three of the following elements were met:
- The person lacked the capacity to consent to their care/treatment arrangements; and
- The person was under continuous supervision and control; and
- The person was not free to leave.
As SRK was in his own home, the DOLS could not apply to him as this was only applicable to people deprived of their liberty in care homes and hospitals. It was apparent therefore that the issue before the Court was whether this DOL, which was created by the care regime, was one for which the State were responsible.
In her decision in Cheshire West, Baroness Hale said: “…what is the essential character of a Deprivation of Liberty? It is common ground that three components can be derived from Storck 43 EHRR, paras 74 and 89, confirmed in Stanev 55 ECHR 696, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the State.”
All parties were in agreement that there was a confinement in a particular restricted place, i.e. SRK’s home and that there was a lack of valid consent, as SRK lacked capacity. The disagreement arose in relation to the final component; whether or not the State was responsible for SRK’s DOL. It was clear that all parties, other than the Secretary of State for Justice, argued that no one could lawfully impose SRK’s care regime on him by making decisions in his best interests and consequently a Welfare Order had to be made by the Court. The Secretary of State for Justice argued that the state was not responsible for SRK’s DOL as SRK was in his own home and a suitable care regime had been established by his Deputy. The State concluded that a Welfare Order was not necessary.
Decision
The Judge concluded that this DOL did need to be authorised by the Court by way of a Welfare Order. At paragraph 10 of the Judge’s decision, it was stated that:
“(3) In my view, a Welfare Order needs to be made in such cases to provide a procedure that protects the relevant person from arbitrary detention and so avoids violation of the State’s positive obligations under and the spirit of Article 5.
(4) That conclusion is based on the premise that the State knows or ought to know of the situation on the ground.
(5) That knowledge exists in SRK’s case and on my approach it would exist in all cases in the class it represents. This is because the court that awards the damages, the COP when appointing a property and affairs Deputy and the Deputy or Trustees or Attorney or other person to whom the damages are paid should take steps to ensure (a) that the relevant local authority with duties to safeguard adults knows of the regime of care, and (b) that if, as here, the least restrictive available care regime to best promote P’s best interests creates a situation on the ground that satisfies the objective and subjective components of a Deprivation of Liberty…a Welfare Order based on that regime of care is made by the COP.”
If you require any further advice or assistance in relation to your Court of Protection costs, please do not hesitate to contact the Clarion COP Costs team on COPCosts@clarionsolicitors.com or 0113 246 0622.
