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19th June 2015

No brief respite

This week I’m writing about yet another judgement by the Court of Protection in a Deprivation of Liberty Safeguards (DOLS) case and another set of criticisms from the judge about how an elderly person’s rights were side-lined. Out of this judgement comes another set of lessons for us all to learn about proper process of the DOLS arrangements and how people’s human rights can be safeguarded.

Respite care

This case of AJ v A Local Authority [2015] concerned an elderly lady who we know as AJ who received care and support from her niece and niece’s husband, and who lived in an annexe of her niece’s house. She developed dementia and her niece was finding the caring role increasingly difficult, to the extent that she felt she could no longer look after her. At the same time she was about to go on holiday, and asked the local authority to arrange a short-term respite care placement in a care home while she and her husband went away. However there was an understanding that this respite care would become a permanent place, and she wouldn’t go back home after the niece’s holiday. Unfortunately AJ wasn’t part of the discussion.

Learning the lessons

There were various complications as to who would represent AJs interests whilst in the care home which I won’t go into, but to cut a long story short, a case was taken to the Court of Protection. Here are the key messages from the judge. Yes these apply to local authorities, but I think care home staff should note these and raise concerns if they see the mistakes being made:

  • Be careful about respite care – is this genuinely a short break, or is it with a view to it being made permanent, and what if the person makes it clear they do not want it to be their permanent home – as AJ did very clearly? In which case there should be an application for a DOL authorisation at the earliest possible stage.
  • Be able to say there has been a full exploration of less restrictive alternatives. Has more outside support for AJ at her niece’s house been explored, or had she been shown other care homes? Maybe these would not have worked, but the Court would want evidence that alternatives had been investigated and ruled out – that is a fundamental principle of the Mental Capacity Act.
  • Ensure that the level of physical intervention and restraint being used with someone is reflected in the care plan. Make sure care plans are reviewed regularly to see this happens.

Care home staff can play a key part in making sure these things are done.

David Beckingham – QCS Expert  Mental Health  Contributor

Topics: Mental Health

Sarah Riley

Senior Customer Care Executive

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