Judge: Charles J
Citation:  EWCOP 27
SRK acquired a brain injury following a road traffic accident, necessitating 24-hour care. The compensation funded the purchase of an adapted bungalow and his care regime. The effects of his injuries meant that he had to be under continuous supervision and control, was not free to leave, and lacked capacity to consent to the care arrangements. The care was arranged by a specialist brain injury case manager and provided by private carers. The accommodation and care costs were privately-funded and administered by a financial deputy, without any input from the local authority. An issue arose as to whether this confinement was attributable to the State, directly or indirectly, so as to engage Article 5.
Charles J held that the State does not become directly responsible simply because of steps taken by a local authority investigating an alleged deprivation of liberty, or by actions of the CQC: “Such steps are part of the supervision and regulation of private providers of care and do not found a sufficient direct participation by the State as a decision maker, provider or otherwise in the creation and implementation of SRK’s (private) deprivation of liberty within Article 5” (para 131). The same is true of an application for a welfare order, a civil court awarding damages, the Court of Protection appointing a deputy, and the deputy itself: none of these make the State directly responsible (para 132-3).
However, the civil court awarding damages, the COP when appointing a deputy, the deputy itself, and trustees or someone acting under a lasting power of attorney to whom a damages award is paid and who must make best interests decisions, they should all be aware that a regime of care and treatment can create a (private) deprivation of liberty. And “[t]hat knowledge of the courts means that the State has that knowledge…” (para 135). The State thereby can become indirectly responsible by failing to comply with its positive obligations under Article 5 to prevent arbitrary detention. The following guidance was therefore given to deputies:
Equally, “the court awarding the damages, the COP and trustees or an attorney to whom damages are paid should also ensure that such steps are taken” (para 136). As a result, the local authority with the adult safeguarding role will know, or should know, of the situation and this “triggers its obligations to investigate, to support and sometimes to make an application to court (or to consider doing those things)” (para 137, emphasis added). A failure to make a welfare order in these cases would breach the State’s positive obligations and mean that the State was responsible for the deprivation of liberty (para 146):
This is the first domestic case since Re A and Re C  EWHC 978 (Fam) to thoroughly examine the issue of State responsibility in the Article 5 context. The outcome is not surprising, given the breadth of the positive obligations. In essence, courts awarding damages, the COP, trustees, deputies and others to whom damages are paid “should” consider the issue and raise it with the local authority. The State’s knowledge arising from that referral then triggers indirect responsibility for the deprivation of liberty. This accords with the position under DoLS for self-funding detained residents, whereby the State becomes indirectly responsible when the care home requests a DoLS authorisation.
In this case, the deputy had notified the local authority which made a Re X application using COP DOL10. What is not altogether clear is what should happen if a local authority fails to seek judicial authorisation for the detention. Paragraph 59 might suggest that the person who notifies should themselves ensure that an application is made. And that is why the cost of doing so should be factored into the calculation of damages awards in the future (para 10(6)). For solicitor deputies, who owe P a duty of care as well as other professional obligations, following the streamlined procedure may be a surmountable challenge. But for family members or friends, it is not altogether clear why and how they should be expected to make the application. This will not be within the contemplation of a would-be LPA. And it is an onerous task for them, bearing in mind that typically there will have been little State involvement. Who will assess capacity? Who will draft the best interests determination? Who will provide the medical evidence? Confronting the challenges of the Re X process will therefore not be easy.