Sadly, there are many people who don’t have the mental capacity to look after themselves and we are often consulted by people whose relatives are resident in care homes.
Sometimes, people can be in a care home because they have a physical condition but do not have the mental capacity to make sure they administer their medication and manage the condition.
Other times, somebody may be in a care home because of very severe mental health problems or learning difficulties.
We have often have cases which are a combination of both scenarios.
It can be very difficult to watch your loved one being looked after in a care home, especially if you think that you could care for them at home with the right support.
In some cases, the patient themselves may be of the opinion that they want to go home.
Many people are often unclear about whether or not they have the right to take their relative out of a care home.
When people consult us about this, we normally ask the question “what would happen if you tried to pack your relative’s bags and take them out of the care home?”.
The answer is often that the care home staff would stop them. If this is the case, then this is a clear indicator that your relative is being detained against their will.
Liberty is a basic human right which everybody has, and you can only be deprived of that in certain circumstances.
If your relative is being held in a care home against their will, they will usually be either subject to the Mental Health Act, a Court of Protection Order, or detained under the Deprivation of Liberty Safeguards.
If your relative is detained under the Deprivation of Liberty Safeguards (DOLS), you may be able to issue a legal challenge against their detention.
The first step to take is to establish that they are definitely detained under DOLS. The local authority will be able to confirm this, as it’s them who authorises the detention under DOLS.
Consult the DOLS paperwork, and if you are named as the patient’s Relevant Persons Representative (RPR) you should be entitled to free legal advice under the Legal Aid scheme. This means that you can see a solicitor at no cost to you, who can help you challenge the detention through the Court of Protection.
If you do decide to issue a legal challenge, the Judge has a wide range of powers including the power to cancel the authorisation to detain your relative, or alter the conditions of their detention.
Sometimes that involves allowing the patient to go home, or it could involve increased visitation rights or allowing the patient trips away from the care home. It’s important to note that if you are the patient’s RPR, you are expected to get legal advice on their behalf if they express a wish to go home.
You can also issue a legal challenge against the detention if you are not the RPR, although you will need permission from the court in order to do this. This means that there will be an extra hurdle to jump over, and the court will need to consider your relationship with the person who is being detained and why you want to make the application.
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.