The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
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:-
1. Is the individual confined to a particular place for a not negligible length of time?
2. Is the individual unable to validly consent to that confinement?
3. 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.
The Court held that SRK’s confinement was attributable to the state. Even though SRK’s confinement was caused by private individuals, “the State knows or ought to know of the situation on the ground” (at paragraph 10(4)). This conclusion was based on the fact that the Court had awarded the damages to SRK, and the Court had appointed his Deputy, the Court being a public authority and so an “arm” of the State.
The State owes a number of positive obligations under Article 5** to protect individuals from arbitrary interferences with their right to liberty, whether that interference is by state agents or by private individuals.
The relevant safeguarding procedure:
For individuals in a care home or hospital, the Deprivation of Liberty Safeguards (“DOLS”) provide a structured procedure for the authorisation and review of any DofL. However, the DOLS procedure does not apply to SRK because he resides in his own home. (Nor does DOLS apply to individuals in supported living, or residing in extra care or shared lives arrangements). In such domestic arrangements, any DofL must be authorised by a specific welfare order made by the Court of Protection.
Therefore, a Court of Protection welfare order (based on SRK’s care plan) was required in order to properly authorise SRK’s DofL.
It has previously been recognised that where the state has a hand in arranging or funding care in such domestic arrangements, any confinement may be attributable to the state, and the local authority should make an application to the Court. This case extends state responsibility to “private” deprivations of liberty, where the state has knowledge only of the circumstances.
So what would cause the State “to know” of the situation on the ground in a private care setting?
The Court in this case determined that, because the Court had awarded SRK’s damages and also appointed a Deputy to manage SRK’s property and affairs, the State was on notice. As a consequence, any confinement was attributable to the State (even though the State neither arranged nor funded the care).
What does this mean for domiciliary care providers?
Where care is provided for individuals in domestic settings who pay privately, in circumstances where the person may be deprived of their liberty, but the person lacks the capacity to consent, consider:
Does the State (or should the State) know about the regime e.g. has there been prior Court involvement?
If so, ensure that the relevant local authority knows about the arrangements, and is addressing the need for a formal order of the Court of Protection. (A copy of the relevant Welfare Order should be kept in the person’s care plan).
What does this mean for Court-appointed Deputies, Trustees or Attorneys funding private packages of care?
- an individual’s domestic care arrangements deprive them of their liberty (but are in their best interests); and
- the person lacks capacity to consent to the arrangement; and
- the State knows or ought to know of that care regime (e.g. where arrangements are funded using damages awards);
they should ensure that the relevant local authority with safeguarding duties knows of the circumstances, and has in hand the relevant application to the Court of Protection.
Going forward, it will also be important to ensure that the additional costs of such Court of Protection applications are factored into any damages awards.
For more information
Please contact Sheree Green or Kirsty MacMillan for advice about how this affects the care of a particular individual. Alternatively, if you are a domiciliary care provider and would like to know more about how this affects your policies and procedures, please contact Emma Young or Emma Watt
* Established in Surrey County Council v P  and Storck v Germany 
** Of the European Convention on Human Rights
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