Care home briefing 139 – Safeguarding and the Court of Protection

The use of the Deprivation of Liberty Safeguards has been the topic of much discussion since the decision in the Cheshire West1.

Whenever a provider is in doubt about whether there has been a deprivation of liberty, they would be well advised to seek a DOLs Authorisation to clarify the position. However, on occasion, the use of the Safeguards may lead to Court of Protection proceedings as was seen in a recent case2.

The facts

An elderly lady with dementia was initially living at home but was removed by the local authority and placed in a care home because of safeguarding concerns about her welfare including bruising. Her son was not initially told where his mother had been placed. A Standard Authorisation was sought but not put in place for two weeks, nor was any court authority initially obtained. The Council applied to the Court of Protection 15 days after removing the lady to seek authorisation for the deprivation of liberty. Those proceedings initially included allegations about the lady’s son, but these were not subsequently pursued.

Court decision

Although the proceedings were resolved by consent, providing for continued residence at the care home and visits by her son, the District Judge criticised the local authority for failing to investigate the safeguarding concerns initially or to seek authority from the Court of Protection before removing the lady from her home. When the investigations were undertaken, these took longer than should have been the case, to such an extent that the way the council dealt with the matter was described by the Judge as “woefully inadequate”. As a result there was an avoidable and unlawful interference in the lady’s human rights3.

The Court therefore granted a declaration that the lady had been unlawfully deprived of her liberty when she was removed from her home and until the Standard Authorisation was granted. This was also a breach of her Article 8 rights.

The case illustrates the continuing complexities faced by local authority commissioners and safeguarding authorities and in particular the need to ensure that the operation of the Mental Capacity Act, the Deprivation of Liberty Safeguards and the protection of Human Rights is fully understood.

Andrew Parsons
andrew.parsons@rlb-law.com
020 7227 7282

© RadcliffesLeBrasseur August 2014

Footnotes
1. R v Cheshire West and Cheshire Council [2014] UKSC19
2. Milton Keynes Council v RR [2014] EWCOP B19
3. Article 5 Right to Liberty and Article 8 Right to respect for her private and family life.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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