Losing capacity: Practical ways to protect the wishes and feelings of those you care about

Can a challenge be made?

A hospital or a care home can apply to the local authority to authorise restrictions on where a person lives and the medical treatment they receive. In some cases, this can include limits on contact with family members and the wider community.

Whilst DoLS orders are intended to be a protective measure, the reasons for the intervention are not always made clear and seem to have been made without proper consultation. This can leave family members feeling excluded and uncertain at what is usually a distressing time.

The guiding principles sitting behind any restrictions which deprive a loved one of their liberty are such that they should satisfy the tests of being necessary and proportionate. The local authority and care provider should always ensure your family member's wishes and feelings are kept under review, especially if circumstances change. Sadly, this can sometimes be overlooked. 

A vulnerable person may object to the care home they are in, feeling that it does not meet their needs. They may ask to return home or request alternative accommodation they believe would better suit their needs. Others may strongly object to restrictions placed on contact with family or friends.

Even where a loved one has lost capacity, they still have the right to challenge a DoLS order under section 21A of the Mental Capacity Act 2005. Care and residency arrangements can be reviewed by the Court of Protection, if this is considered to be in the person’s best interests. This process exists to ensure that the fundamental human rights of vulnerable people are respected and protected.

The role of the Court of Protection

The Court of Protection is a specialist court which deals with people who may lack capacity to make specific decisions. Provided there are sufficient grounds, applications can be made on behalf of a vulnerable person, who will usually be eligible for legal aid), by their appointed representative, or by a family member, friend or local authority.

The person’s wishes and feelings are central to the court’s decision making. The Court will consider all relevant evidence and can make wide-ranging decisions, including:

• Whether it is in the person's best interests to be deprived of their liberty and whether a less restrictive, safe alternative is available
• Whether the legal requirements for a DoLS order are met, including whether the restrictions are necessary and proportionate
• How long the restrictions should remain in place and their overall purpose
• Whether the person has capacity to make decisions about specific aspects of their care or living arrangements

How can we help

Challenging a deprivation of liberty can involve sensitive and complex issues, requiring a careful assessment of what is genuinely in a person's best interests, often supported by independent expert opinions. 

If you are worried about a loved one's situation, it is important to seek advice at an early stage. Deciding whether to make an application can be difficult. It can be hard to assess whether a vulnerable person’s objection stems from their illness, and their views may be inconsistent. We can help you assess the merits of making an application as a first step.

Applications can often be hampered when communication between care providers and family members break down. There are mechanisms which can be put in place which will smooth the path. With the right approach, and proper consultation, in our experience concerns can often be resolved by agreement, avoiding the need for a contested Court of Protection hearing.

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For more information or advice, please contact Fiona Lawrence in our Contentious Probate and Trusts team.