Jean-Yves Gilg

Editor, Solicitors Journal

Care home dilemma

Care home dilemma


Poor treatment at the hands of care home staff is an unfortunate but all too familiar theme; should the vulnerable be cared for at home?

Historically, over the past four to five years, there has been a constant bubbling of news stories relating to the mistreatment of residents within care homes, as well as care homes' falling standards of care. Most recently, the news that GPs may vote to axe care home visits, in my opinion, highlights a disregard, on the part of the NHS, for the most frail and vulnerable members of our society.

While we are all aware that the NHS does not have infinite resources, how can the nation's health service fail the most vulnerable people in our society, by not caring for them in an environment that is fitting for their needs?

Black paint

Is the NHS completely to blame for this failing? In my opinion, no. While I do not wish to taint all of the care homes in the UK with the same brush, the fact remains that stories in the press highlight that there are occasions where individuals in care are treated badly, or do not receive the care that they require. What can be done to protect these individuals?

Previously, I acted for a client (who I will call P in this article) under registered lasting powers of attorney following a loss of capacity. P was in care in the North of England but a period of respite care was trialled in a nursing home close to P's family, with a view to enhancing her personal life. Full details of P's conditions were provided to the respite care home in which she was to reside.

After a two week period of respite care, P began feeling unwell as a result of what it later transpired was incorrect treatment being applied to wounds on P's legs by the care home; P passed away.

Steps were taken to contact the Care Quality Commission to advise them of the issues that had been encountered and as part of the administration of P's estate, following her death, a letter before action was sent to the care home alleging negligence on their part. A damages award was ultimately paid out by the care home without the need for issuing proceedings.

What's best for P?

Questions were raised about my decision to trial P in respite care closer to P's family, against her living with her family members themselves. The case of BP and RB v London Borough of Haringey [2016] EWCOP12 states that the decision comes down to one that must be in the best interests of the individual.

The deprivation of liberty (i.e. moving an individual into care) must be in the individual's best interests based on the following criteria:

  • the individual is being detained in the care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of liberty;

  • this is in their best interests;

  • this is necessary in order to prevent harm to the individual; and

  • the detention in the care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of liberty as a proportion of response for the likelihood of their suffering harm, and the seriousness of that harm (if they were not detained).

Given the issues raised in the news about the standard of care being provided in care homes, it is understandable why an individual's family may believe it not to be in the best interests of an individual. It will be interesting to see how this position develops. 

David King is a solicitor at Hugh James

He writes the regular vulnerable clients comment in Private Client Adviser