Discussing the Court of Appeal’s judgment in R (YZ) v Oxleas NHS Foundation Trust, Sheree Green suggests that mental health practitioners will read this...
Are decisions being made about you or a family member by the local authority or medical professionals that do not seem right or fair? Do you need assistance understanding and challenging these?
If you or a family member has been deemed to lack mental capacity, under the Mental Capacity Act 2005, it is essential that the individual's best interests are put first to protect all that they have worked for. To have capacity to make a decision, someone must be able to:
- Understand necessary information about the decision.
- Retain that information for long enough to be able to make a decision.
- Understand the consequences of the decision (or not making the decision).
- Communicate their decision.
An individual who lacks mental capacity may no longer be able to make important life decisions, such as:
- Where they live and decisions about their property.
- Financial decisions.
- The kind of care and treatment they should receive.
- Who they should have contact with.
- Whether they can consent to sexual relationships.
- Whether they can consent to marriage.
- What decisions should be made with regards to medical treatment.
In these circumstances, decisions may still need to be made.
If the person has no-one legally authorised to make a particular decision for them (such as a welfare attorney under a Lasting Power of Attorney), then a decision will need to be made, based on what is in the person’s best interests.
Our health and welfare services
You may be in a situation where the local authority or the health authority is making a best-interest decision on behalf of the individual. It is possible that the authority’s decision is not what you believe to be best for the individual. We work with our clients to ensure the right decisions are being made, challenging poor best-interests decisions. We will liaise with the local authority, attend best-interest meetings and advise on all aspects of health and welfare Court of Protection matters, from initial advice to representation in court. We are able to travel to any court in the UK and can facilitate home visits. We can offer access to public funding (legal aid) if available and the relevant criteria are met.
If you or a family member are receiving care in a care home, residential home or hospital and feel a deprivation of liberty has occurred, our experienced deprivation of liberty safeguards team can help.
What is Deprivation of Liberty Safeguards?
Deprivation of Liberty Safeguards (DoLS) is part of the framework introduced by the Mental Capacity Act 2005. A deprivation of liberty may occur when an adult who has been assessed and determined to lack mental capacity, under the Mental Capacity Act 2005, is receiving care within a care home, residential home or hospital and is under continuous supervision, observed at all times and not free to leave their care environment. To have capacity to make a decision, someone must be able to:
- Understand the information about the decision;
- Retain that information long enough to be able to make a decision;
- Understand the consequences of the decision; and
- Communicate the decision.
In some instances, a deprivation of liberty may be vital to ensure the individual's safety, but it must be properly authorised in order to be lawful. The authorising body must ensure they examine less restrictive ways to provide the individual's care, which does not restrict their freedom or deprive them of their liberty.
Our Deprivation of Liberty Safeguards service
We work with individuals and their families to challenge DoLS, when it is felt that they are inappropriate or less restrictive measures could be taken to provide their care. Our specialist DoLS team works with individuals and family members to help them to understand every step of the process and provide clear, practical advice. They can:
- Advise on and attend best interest meetings with the local authority
- Challenge DoLS
- Apply to the Court of Protection.
At Anthony Collins Solicitors, our experienced DoLS team can advise on all aspects, from initial advice to challenging the DoLS by applying to the Court of Protection. Our law firm is one of a few in the West Midlands that offers DoLS and are able to travel to any court in the UK and can facilitate home visits.
DoLS law can be complex and difficult to understand but our expertise in this niche area enables us to give clear, practical advice through every step of the process. Our DoLS team has the experience, knowledge and sensitivity to assist individuals and their families through this difficult period.
In most cases we can act on legal aid, meaning that your legal costs are wholly or partly paid from public funds. This is available to individuals with limited means and with the approval of the Legal Aid Agency. Our team is happy to advise on whether you are eligible for Legal Aid and assist you through the application process. If you are not eligible for Legal Aid, we can advise on the best way to fund your case privately.
As one of the West Midlands' most successful and respected law firms, our solicitors are passionate about delivering expert legal advice to support you to achieve a successful resolution to your legal issue. Our advice is practical, clear and we work with our clients to guide them through every step of the legal process. Our experienced teams have the knowledge, experience and sensitivity to assist individuals and their families through periods of uncertainty and difficulty.
If you or a relative would like further information on Deprivation of Liberty Safeguards or how our family law team can help you, please get in touch.
What is deputyship?
When an individual lacks mental capacity to make a number of important decisions regarding their health or welfare, a family member or friend can make an application to the court to be appointed as the individual's health and welfare deputy. The appointed health and welfare deputy is then able to make health and welfare decisions on behalf of the individual, which might include decisions about their care and treatment or where they should live.
A health and welfare deputyship is often the best way to ensure that the individual's feelings and wishes are truly taken into account, and their specific needs properly addressed as the deputy making the best interest decisions will have an established relationship with the person and their personal knowledge to draw on.
The Court of Protection can be reluctant to appoint health and welfare deputies, preferring instead to see decisions made by collaboration with the relevant health and social care authorities. However, this approach is not right for everyone. If you believe a health and welfare deputyship order should be made, it is critical to ensure you have the right advice and representation.
Our team has the skill, experience and understanding to help you navigate successfully through a health and welfare deputyship application.
If you or a relative would like further information on the Court of Protections' health and welfare jurisdiction or determining best interests, please get in touch.
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