Deprivation of liberty and deputies

A property and affairs deputy doesn’t have an obligation to worry about whether P is being deprived of their liberty because that is a welfare matter right? Wrong. The recent Court of Appeal decision in the case of Staffordshire County Council v SRK [2016] EWCOP27 (“SRK”) has put an obligation on property and affairs deputies to alert the relevant local authority to possible deprivation of liberty cases in certain circumstances.

What is Deprivation of liberty?

As defined in the Cheshire West case, a deprivation of liberty is when P:

1. Is confined in a particular place for a not negligible length of time,
2. Does not give consent or lacks the ability to give consent
3. They are the responsibility of the State.

If someone is deprived of their liberty this is a direct breach of Article 5 of the European Convention on Human Rights, unless that detention is lawful and authorised.

A deprivation of liberty safeguarding order (DoLS) can be applied for by the State to make the detention lawful, but this only extends to people residing in care homes and hospitals. The case of SRK questioned whether the State had responsibility for those living in private accommodation with a privately funded care package.

It was decided that at present, although the State has a responsibility to people in this situation, they would only be in a position to act if the matter was drawn to their attention and that this did not meet the obligation of the State under Article 5 to prevent arbitrary detention. Given that there were insufficient safeguards in place for those in a fully privately funded regime, the court determined that the State would be responsible where the following factors are satisfied:

1. P lacks capacity
2. The care regime is in P’s best interests and is the least restrictive in the circumstances
3. P lives in privately owned or rented property with a privately paid for care package
4. The funds to pay for the property and care are funded through damages awarded by the Court
5. The Court of Protection has appointed a deputy
6. The deputy has taken steps to ensure that the relevant local authority is aware of the care regime and that in these circumstances a welfare order based on that regime of care is made by the Court of Protection.

It is the final point which puts an obligation on the deputy to ensure that the correct order is made to make any deprivation of liberty lawful. I consider that the first step for property and affairs deputies will be to write to the relevant local authority setting out the circumstances and care regime and ask that they make the appropriate application. If the State makes the application it will of course save costs. However it was noted in SRK that the deputy will be under an obligation to go ahead with making the application if the State does not. It therefore provides that this conclusion should be factored into the calculation of damages awards in the future.

It is important to note that where P is under 16 and has a parent capable of exercising parental rights, the parents can consent to the deprivation of liberty without need for intervention of the State or the Court.