HCPA would like Homecare providers offering private care to note that individuals who live in their own home, with a 24-hour care regime that is entirely funded privately may also be caught by the DofL legislation, and need their care arrangements authorised by the Court of Protection, demonstrated by the recent case of Staffordshire County Council v SRK and others earlier this year.
Domiciliary care providers will need to consider making a referral to the relevant local authority, where they provide services to a private paying individual who may be deprived of their liberty, and who cannot consent to the arrangement.
To determine whether a situation gives rise to a DofL, the questions to ask are:-
- Is the individual confined to a particular place for a not negligible length of time?
- Is the individual unable to validly consent to that confinement?
- Can that confinement be attributed to the state?
In the Staffordshire case, the parties all agreed that the first two criteria above were satisfied, but there was a question as to whether a confinement can be attributed to the state where the care is both arranged and funded entirely privately.
SRK was severely injured in a road traffic accident and requires 24 hour care and support, 7 days a week: he is wheelchair-bound and requires assistance with all aspects of personal care and daily living. SRK was awarded substantial damages for the injuries he suffered from the road traffic accident. However, he lacks capacity to make decisions regarding his regime of care, treatment and support.
SRK’s Property and Financial Affairs Deputy uses the damages awarded to SRK to purchase a private-care package. The arrangements are such that SRK is constantly monitored, either by support workers or by the use of assistive technology. All parties agreed that the care package is the least restrictive available option to best promote SRK’s best interests.