Health and Social Care solicitors answer your frequently asked questions about Deprivation of Liberty and Health and Welfare
Under the Mental Capacity Act, you can make most decisions that relate to the care and treatment of your mother. These include what she wears and eats and whether she should be cared for in a care home or receive medical treatment.
All decisions must comply with s5 Mental Capacity Act and must be made in your mother’s best interests.
Decisions which can’t be made on your mother’s behalf are:
Yes. Provided the principles of the Mental Capacity Act have been followed and the decision to move your mother is in her best interests and all less restrictive options have been considered, then you may make the decision to move your mother, even if she objects.
However, depending upon the degree of disagreement about the move, an application to the Court of Protection may be required to authorise it.
For expert advice on whether a Court of Protection application is necessary, contact our Community Care Law Team.
In certain circumstances, yes.
Recent case law has established that if an adult is under continuous supervision and control and is not free to leave their environment, this is deprivation of liberty.
In all cases, except within a care home or hospital setting where the Local Authority can authorise the arrangements, deprivation must be authorised by the Court of Protection.
Yes. S6 Mental Capacity Act allows restraints to be placed on those who lack capacity in situations where it is necessary to prevent them from harm, and where that restraint is proportionate to the likelihood of them suffering serious harm.
The Mental Capacity Act states that restraint occurs when you use or threaten to use force to perform an act which an adult lacking capacity resists to. This includes providing care to them against their will e.g. washing, dressing, feeding, administering medication, etc.
Furthermore, restraint occurs when you restrict a person’s liberty of movement, whether they resist or not. This includes preventing a person from leaving anywhere freely, using a harness in a car, or any action that restricts movement.
It’s difficult to define what a lawful restriction is and what amounts to a deprivation of liberty.
Factors such as the type of restraint being made, how long it lasts and its effects, all play a part in determining whether a restriction is a deprivation of liberty.
If you need to make a decision to restrain an adult, obtain legal advice from experts in this field first.
When urgent action is required to provide life-sustaining treatment or to carry out an act that is necessary to prevent serious deterioration to your mother’s condition, you can make a decision provided that you apply to the Court of Protection to authorise it without delay.
No. As your mother made the decision to refuse medical treatment when she had capacity, this cannot be overridden.
Ensure you keep clear records of how and why decisions have been made and ensure the views and wishes of your mother and all consulted are recorded.
Make sure that your mother’s care plan is up-to-date and contains all this information.
If you or require specialist Community Care Law advice on deprivation of liberty and health and welfare, please contact us on 01273 609911, or email firstname.lastname@example.org to find out how our Health & Social care lawyers can help.
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