LEGAL EAGLE: Concerned over deprivation of an OAP’s liberty

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It’s a sad fact of life that we all grow old and many of us may need some extra support to care for ourselves later in life.

This is always a testing time for family and relatives, and can sometimes result in our loved ones being admitted to a care home. This can be difficult to deal with, especially if you feel strongly that your relative would be better off being cared for by family.

If your loved one is adamant that they want to leave the care home, you may be unsure of whether this is ‘allowed’ and whether you will be stopped from taking them home. If your relative is being restrained, or lacks capacity to consent to being detained, it’s possible that they are being deprived of their liberty.

Everyone has a basic human right to freedom, and there are only a few situations when someone can lawfully be detained of their freedom.

Therefore, it should be assumed that your relative does have the right to freedom and liberty and you should question what is in place to authorise their deprivation of liberty.

In certain circumstances, the local authority can authorise to detain somebody under the Deprivation of Liberty Safeguards.

This most often takes place when the person is being cared for in a care home, and the local authority want to ensure that the person is not removed from that care home. The local authority do this when they believe it is in someone’s best interests to be cared for so that they get the medical treatment they need and do not come to any harm.

Although the local authority must follow a strict procedure before they detain somebody under the Deprivation of Liberty Safeguards, the authority to detain can still be challenged by the detained person or their relatives. Although a challenge can be brought when the detained person wants to be discharged completely, a challenge can also be brought even if the detained person simply wants to change the conditions of their detention. This might happen when a person of middle age is placed in a care home with very elderly people. Alternatively, it might be if someone who has a mild condition is placed in a care home with other residents who have very advance conditions.

The person detained should always have a nominated representative, named in the paperwork as the Relevant Person’s Representative (RPR).

The person themselves can bring the challenge themselves, but their RPR can also challenge the detention. Importantly, the RPR can challenge the authorisation even if the detained person doesn’t want to. Both the detained person and the RPR will be automatically entitled to free legal aid regardless of their income.

If you have a loved one in a care home, and there are concerns about their detention which needs to be voiced, get in touch with a Court of Protection solicitor. They will advise you about the process of challenging a deprivation of liberty, and can help you get the ball rolling. The implication of issuing a challenge in the Court of Protection is that a specialist judge will consider your relative’s circumstances carefully and will recommend any changes that need to be made.

l Bethany Symonds is a trainee solicitor at David Gray Solicitors LLP. You can call for an appointment with Bethany or any member of the Court of Protection team on 0191 243 8160 or Chat Live 24/7 by visiting the website.