According to Article 5 of the Equality and Human Rights Commission nobody can be deprived of their liberty without reason.
If a relative of yours has been moved into a care home against their wishes and they are unable to leave, you have the right to appeal for their liberty through the court of protection, according to Ann-Marie Aston Partner in the Private client team at Wilkes.
The law is very clear on this matter, she says. Providing due process has been followed then the deprivation of their liberty is lawful. However if any of these three criteria have not been meet then you have grounds for appeal:
- The individual has a diagnosis of mental illness
- The individual lacks the mental capacity to agree to being locked up
- The individual is over 18
In 2009 Deprivation of Liberty Safeguards (DoLs) were added to the Mental Capacity Act 2005. The safeguards have been put in place to make sure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom.
Unfortunately, there are many instances where due process has not been carried out by the Local Authority and families are often unaware of their rights to appeal. Many elderly people can be provided with appropriate care within their own homes and so do not need to be moved.
Even in instances where the Local Authority or the NHS has granted a deprivation order, the family still has the right to appeal against the decision.
There are 850,000 people in the UK who have been diagnosed with dementia and each year there are growing numbers of DoL applications. Clearly with an ageing population this is a problem that is not going to go away and with increasing pressure on care homes it is important for individuals to be cared for in their own homes for as long as possible.