FAQs: Deprivation of Liberty & Health & Welfare

1. What decisions can you make as a health and welfare Deputy/Lasting Power of Attorney for your mother who lacks capacity?
2. What decisions, relating to your mother’s care, can’t you make as her health and welfare deputy/Lasting Power of Attorney?
3. As health and welfare Deputy/Lasting Power of Attorney, can you move your mother into a care home against her wishes?
4. Is leaving your mother at home with the support of carers a deprivation of liberty?
5. Can you place restraints on your mother as her health and welfare Deputy/Lasting Power of Attorney without authorisation?
6. What is meant by ‘restraint’ in the Mental Capacity Act?
7. When does a restriction become a deprivation of liberty?
8. How do you, as health and welfare Deputy/Lasting Power of Attorney, make decisions on your mother’s behalf, in an emergency?
9. As health and welfare Deputy/Lasting Power of Attorney, can you override your mother’s advance decision to refuse all medical treatment?
10. What can you do to ensure you make lawful decisions, as a health and welfare Deputy/Lasting Power of Attorney, on your mother’s behalf?

What decisions can you make as a health and welfare Deputy/Lasting Power of Attorney for your mother who lacks capacity?

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.

What decisions, relating to your mother’s care, can’t you make as her health and welfare deputy/Lasting Power of Attorney?

Decisions which can’t be made on your mother’s behalf are:

• Consenting to marriage or a civil partnership;
• Consenting to have sexual relations;
• Consenting to a decree of divorce on the basis of 2 years’ separation;
• Consenting to a dissolution of a civil partnership;
• Consenting to a child being put up for adoption or the making of an adoption order;
• Discharging parental responsibility for a child in matter not related to the child’s property;
• Giving consent under the Human Fertility and Embryology act 1990;
• Voting on behalf of a person in a general or local election, or referendum;
• Consenting to detention and treatment under the Mental Health Act 1983; or
• Any decision that your mother or the Court has expressly excluded

As health and welfare Deputy/Lasting Power of Attorney, can you move your mother into a care home against her wishes?

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.

Is leaving your mother at home with the support of carers a deprivation of liberty?

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.

Can you place restraints on your mother as her health and welfare Deputy/Lasting Power of Attorney without authorisation?

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.

What is meant by ‘restraint’ in the Mental Capacity Act?

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.

When does a restriction become a deprivation of liberty?

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.

How do you, as health and welfare Deputy/Lasting Power of Attorney, make a decision on your mother’s behalf, in an emergency?

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.

As health and welfare Deputy/Lasting Power of Attorney, can you override your mother’s advance decision to refuse all medical treatment?

No. As your mother made the decision to refuse medical treatment when she had capacity, this cannot be overridden.

What can you do to ensure you make lawful decisions as a health and welfare Deputy/Lasting Power of Attorney, on your mother’s behalf?

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 info@ms-solicitors.co.uk to find out how our Health & Social care lawyers can help.