No DoL – No Chance?

This is a complete work of fiction.

A friend of mine has been in court recently in an attempt to challenge her Local Authority’s decision that it is in her relatives’ best interests to live in a care home. The court has declared that none of the parties, the local authority or the care home can be disclosed, so my apologies that this post may read a little vague at times.

The judge decided that he was going along with the LA’s decision, although he raised the question whether the same decision would have been arrived at, if the case had come before the court sooner. He decided that after two years in the care home, the relative would be “settled” and a move, either back to her home or to alternative accommodation would not be in her best interests. I understand a certain logic in that but my unease comes from how the outcome could have been very different for the lady if the Local Authority had carried out the proper process at the time.

A couple of years back, when she was in her early nineties, the lady had a fall at her home. She was admitted to hospital but lack of beds meant she was quickly discharged to a care home. She has been there ever since, although nobody at the time agreed that this would be a long-term arrangement. Both the lady and her family assumed that at some point, she would return to her home. After a few months, my friend started to ask questions; normal questions that a concerned relative might ask – most notably, what were the plans for her relative returning home? This is interesting in itself – already the power balance had shifted – my friend was asking others what their decision was. She was quite clear that she wanted her grandmother to come home; the relative wanted to return home but something told her that it wasn’t her decision to make. This is such a common trap that we carers fall into.

So, we have a person in a care home asking to go home and her family asking for her to go home. Surely we are now in Deprivation of Liberty territory. Only, in this case one was never authorised. The lady has remained in the home for two years without a Deprivation of Liberty authorisation (DoL). The consequences of this have been very costly and I don’t just mean financial):

My friend had to take the lead in trying to bring the case to court. This took two years from the time, her relative was first admitted to the home. Trying to find legal representation was near impossible. But if a DoL had been served, the relative could have been represented by the official solicitor and assuming my friend would have been appointed her RPR, she would have been entitled to legal aid as well. None of that happened and now my friend faces huge costs. Also, if a DoL had been authorised, then the case would have come to court much sooner and the whole business of the lady being “settled” might have been seen very differently. A DoL would have to had included the lady and her family’s objection to the placement and a decent stab at a best interests assessment would have had to have taken place, addressing the point which the LA seemed determined to avoid – was there a lesser restrictive option for her care available? Once again, this didn’t happen. It seems to me there were several breaches to the lady’s human rights going on here.

My friend, after two years of fighting, is exhausted and is letting the matter rest. I know that feeling; I am still experiencing health issues that I am convinced are the result of my two-year long battle. My friend was in a very similar situation to me; the LA withheld important information from her and she was excluded from much of the process. To have to fight every single step of the way, when you are being blindfolded most of the time is an exhausting exercise.

There has been a lot of discussion recently about the latest DoLs figures issued by the Department of Health. At the time I felt there was something really important missing – how many people are there in care homes or hospitals without a DoL, where it is clear there should be a standard authorisation in place. We will never know the answer to that as the machinery isn’t there to monitor when this is happening. I know from letters that I get that there are many people completely trapped because they know enough from the Neary vs Hillingdon case that a DoL should be in place but they cant get the managing authority to serve one.

Justice Peter Jackson said that authorities must not use DoLs as a means of getting their own way – does this story show that some authorities may not be using DoLs as a means of getting their way?

This completely imaginary case shows that there could be a lot of it about.