Catastrophic injury claim: welfare order required

Staffordshire County Council v SRK and others [24.05.16]

Care regime for an adult lacking capacity created a deprivation of liberty which had to be authorised by the Court of Protection.

Implications

This case extends the remit of the state’s obligations to apply to safeguard vulnerable adults, who have a deputy appointed, even if living and cared for in a private capacity.

In these cases, the Court of Protection (COP) has appointed a deputy (D), who makes decisions in the person’s (P’s) best interests. D should be aware the regime creates a (private) deprivation of liberty. Therefore, D must alert the local authority with safeguarding responsibilities for P. By doing so, Mr Justice Charles held in this case that D:

would be taking proper steps to check whether D and/or the local authority could put in place arrangements that meant that P was not objectively deprived of his liberty or that would make the care arrangements less restrictive and/or remove any restraint.

The local authority then knows or should know of the situation. This triggers its obligations to investigate, to support and sometimes to make an application to court (or to consider doing those things).

Who brings the application is unclear. However, it would seem that it would have to be the local authority, as the organ of the state, with D (and P) an interested party.

This decision will add to damages sought in catastrophic clinical negligence and personal injury matters where deputyship is involved.

Background

SRK was severely injured in a road traffic accident. He was awarded substantial damages that were paid to his property and affairs deputy. As a result of the accident, he lacked capacity to make decisions on his care regime.

Applying the approach in Cheshire West [2014] this regime created a deprivation of liberty.

Decision

Charles J held that this was a deprivation of liberty which had to be authorised by the COP by it making a welfare order. The test the COP would apply was whether SRK’s care regime was the least restrictive option to best promote his best interests. The welfare order would include provisions concerning when and how it was to be reviewed.

He indicated that this conclusion should be factored into the calculation of damages awards in the future.