Whose best interests?

"It is hard to imagine a more depressing and inexcusable state of affairs. A defenceless 91-year-old gentleman in the final years of his life was removed from his home of 50 years and detained in a locked dementia unit against his wishes."

The judgment of District Judge Mort in the case of Essex County Council v RF (2015) EWCOP 1 is
a timely reminder of how the Mental Capacity Act 2005, Deprivation of Liberty Safeguards (DoLS) should work.

I don't intend to go through the facts of the case here, but to consider how easily the DoLS can be forgotten when dealing with clients who may need supporting in their daily routines.

Case study

Consider my client, Miss C. Like the gentleman in the Essex County Council case, Miss C was an independent person. She had been successfully and happily living alone her whole life. She had never married and had no children,
but was very close to her niece.

Miss C had a fall and was taken to hospital, where it was found that she hadn't suffered any serious injuries, but was suffering from memory problems. Her niece confirmed that her memory and level of understanding had been deteriorating, but that she was happy at home and had been managing.

Miss C was discharged to her home and her niece was advised to ask social services to assess her aunts needs as there were services she could benefit from.

Miss C's home was, to be frank, dirty. It was messy, it didn't smell nice and her personal hygiene was poor. It was easy for a social care professional to walk in to that environment and assume that she wasn't coping, was at risk and needed to be moved into care "for her own good". Having persuaded the niece of this, Miss C was taken to a care home, told that the stay was just for a short while to enable modifications to be made to her house (which wasn't true) and her constant requests to go home were ignored.

Flawed beginnings

Going right back to the five key principles in section 1 of the MCA,
it is clear that assumptions were being made about her and about how she chose to live from the start, including a fundamental disregard of section 1(2):
"A person must be assumed to have capacity unless it is established that he lacks capacity".

Following on from the key principles, the DoLS make it very clear that the following have to apply if someone is to be deprived of their liberty:

1. The DoL must be to provide a specific treatment or care plan that is in the person's best interests.

2. Doctors or care professionals must be satisfied that there is no suitable alternative care plan that would not deprive the person of their liberty.The hospital or care home must apply to its supervisory body for authorisation to begin the care plan.

3. The hospital or care home must apply to its supervisory body for authorisation to begin the care plan.

4. The supervisory body must conduct 6 assessments to confirm that the deprivation is lawful and appropriate. These are age; no refusals; mental capacity; mental health; eligibility; and best interests.

In Miss C’s case, there was no assessment of her capacity to make her own decision about where she should live at the time she was taken to the care home; there was no treatment or care plan being considered; and there was no application for authorisation. Luckily for Miss C, she did not have to spend anything like 17 months in care, or wait for a case to be taken to the Court of Protection.

Her niece quickly realised that it wasn’t in Miss C’s best interests to be in care, and once we ascertained that Miss C’s capacity to make her own decision about residence hadn’t been assessed, we got her back home.

It can be very easy to think that you are ‘doing what’s best’ for someone, when in fact you are restricting them and controlling their lives. The fact that damages of £60,000 have been awarded in the Essex County Council case should make it clear - the DoLS are not just suggestions that can be ignored.

Sofia Tayton is a partner and head of care and capacity at Lodders Solicitors

She writes the regular in-practice article on care and capacity for Private Client Adviser