SRK was severely injured in a road traffic accident and the effects of those injuries meant that SRK lacked capacity to make decisions about the care, treatment and support he should receive. SRK was awarded substantial damages that were paid to his property and affairs deputy (as he lacked capacity to manage his own property and affairs), being Irwin Mitchell Trust Corporation.
Using the damages that had been awarded to him following the road traffic accident, SRKâ€™s property and affairs deputy purchased and paid for adaptions to a property for SRK to live in. The money was also used to fund a regime of care and support to him in the property, which was provided by private sector providers.
Applying the approach in Cheshire West, SRKâ€™s care regime amounted to a deprivation of liberty. As a reminder, in Cheshire West, the Supreme Court clarified an â€˜acid testâ€™ for what constitutes a deprivation of liberty. The acid test states that an individual is 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 are met:
As SRK was in his own home, the Deprivation of Liberty Safeguards could not apply to him as they are only applicable to people deprived of their liberty in care homes and hospitals. Therefore, the issue before the court was whether this deprivation of liberty, which was created by the care regime purchased by SRKâ€™s deputy, was one for which the State were responsible and, therefore, that must be authorised by the Court of Protection by it making a welfare order.
In her decision in Cheshire West, Baroness Hale said:
â€œ37. …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.â€
All parties were in agreement that (a) there was a confinement in a particular restricted place, being SRKâ€™s home, for a not negligible length of time; and (b) that there was a lack of valid consent, as SRK lacked capacity to consent. The disagreement arose relating to the final component; whether or not the State was responsible for SRKâ€™s deprivation of liberty.
All parties, other than the Secretary of State for Justice, argued that no one could lawfully impose SRKâ€™s care regime on him by making decisions in his best interests and so a welfare order had to be made by the Court of Protection to authorise SRKâ€™s deprivation of liberty.
The Secretary of State for Justice argued that the state was not responsible for SRKâ€™s deprivation of liberty, as it was in his own home and a consequence of the care regime put in place by his deputy, and a welfare order was not necessary.
In his decision, Charles J concluded that this deprivation of liberty did need to be authorised by the Court of Protection by way of a welfare order. At paragraph 10 of his decision, he stated that
â€œ(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 Stateâ€™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 SRKâ€™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 Pâ€™s best interests creates a situation on the ground that satisfies the objective and subjective components of a deprivation of liberty (and so a deprivation of liberty within Article 5) a welfare order based on that regime of care is made by the COP.â€