Our expert Court of Protection Health and Welfare Solicitors Team focuses specifically on health & welfare issues for those who do not have the mental capacity to make decisions on topics in this area. In some instances, it will be possible for those involved, both professionally and personally in a person’s care, to reach agreement on decisions in line with the person’s best interests. However, if this is not possible and dispute arises, the Court of Protection should be asked to make the decision.
To see all of our available services, see our Court of Protection page here. If you wish to speak with one of our solicitors, either phone the number on this page or contact us through our contact page here.
Reeds Solicitors’ Court of Protection team is named ‘one to watch’ in the Legal 500, 2023. It recognised both our ‘excellent team ethos’ and the ‘array of talent’ on our team.
What does ‘lacking mental capacity’ mean?
Mental capacity is defined by someone’s ability to make a decision. The ability to do so is decision and time specific. In order to have capacity to make a decision, they must be able to:
- Understand what the decision involves
- Remember information for long enough to make a decision about it
- Use and weigh up the information to reach a decision
- Communicate the decision
If a person is unable to do any one of these steps, then they will lack the mental capacity to make the decision and it may then fall to the Court of Protection to make it.
What does the Court of Protection do in respect of Health and Welfare disputes?
If someone lacks the mental capacity to make decisions in relation to health and welfare issues and there is a dispute about what should happen, the Court of Protection will be asked to make the decisions.
Some examples of the kinds of issues the Court of Protection will be asked to make decisions on are:
- Whether someone has capacity to make decisions
- Whether a person’s care and support, or any restrictions that are in place, amount to a deprivation of liberty
- Where a person should live e.g. in a care or residential home or whether they should return to the family home
- What care and treatment a person should receive and from whom, including decisions which may lead to end of life
- Whether a person should have contact with certain other people and if so, whether that contact should be restricted
- Whether a person has capacity to consent to and engage in sexual relations or get married
- Whether a person should be allowed access to the internet & social media
- Whether a person should resolve certain medical treatment
We regularly act in complex health and welfare proceedings in the Court of Protection. We can act on behalf of the person that lacks capacity (“P”) through their litigation friend – this may be an advocate or the Official Solicitor. We also act on behalf of family members.
What are the Deprivation of Liberty Safeguards (DoLS)?
A deprivation of liberty is when a person who lacks the mental capacity to consent to their care arrangements is under continuous supervision and control and not free to leave their place of residence.
A person can be deprived of their liberty in a care home or hospital provided the relevant local authority or health board has followed the procedure set out in the Deprivation of Liberty Safeguards (DoLS).
The safeguards are designed to ensure that the deprivation of liberty is in the persons best interests and is the least restrictive way of ensuring their safety. It must involve formal DoLS assessments undertaken by a best interests assessor and a mental health assessor who must not be associated with the person’s care.
The assessment covers six questions in order to decide if the deprivation of liberty should be authorised:
- Is the person aged 18 years or over?
- Do they have a mental disorder?
- Do they lack the mental capacity to make decisions about their care?
- Is the deprivation of liberty in the persons best interests?
- Should they be detained under the Mental Health Act 1983 instead?
- Would the authorisation conflict with any advance decision the person as made, or with any decision made by a court appointed deputy or someone with a lasting power of attorney?
If all of these criteria are met, a ‘standard authorisation’ will be put in place, but this is sometimes known as a ‘DoLS’. There are standard forms to complete as part of the assessments, which will set out the reasoning for the authorisation, together with the length of time it is to be in place for and what conditions, if any, are attached to it. The maximum amount of time for a standard authorisation, without further assessment, is 12 months.
A person deprived of their liberty has certain rights available to them. They will have a relevant person’s representative (RPR) allocated to them as soon as the authorisation is in place, which may be a family member, friend or professional advocate. It is their role to provide a person with representation and support that is independent of those who commission their care. They should also support the person subject to a DoLS to review or challenge any decisions with which they disagree before the Court of Protection.
It is also possible to be deprived of your liberty in other settings, such as in your own home or in a supported living placement. This must be authorised by the Court of Protection and cannot be authorised by a public body. This is sometimes known as a community deprivation of liberty or ‘DoL’.
How our Health and Welfare Solicitors help with challenging DoLS?
If someone is deprived of their liberty in a care home or hospital and is objecting to remaining there, an application can be made to the Court of Protection to look at the situation. A judge can be asked to review whether it is in the person’s best interests to remain there or whether there are less restrictive options available.
We frequently make applications on behalf of the person deprived of their liberty if they are not happy with the situation through their advocate. Our Health and Welfare Solicitors also regularly act on behalf of family members who may be concerned about the care their family member is receiving and can provide advice.
Do I need a solicitor to challenge a Deprivation of Liberty Safeguard?
This area of law is very complex and there are lots of different forms that need to be completed and procedures that must be followed. Although some people do represent themselves in the Court of Protection (and this is known as acting as a ‘litigant in person’), these proceedings are, by their very nature, very emotional and can be difficult.
We are able to provide you with expert advice and guide you through the whole process to make it easier. The expertise of our Health and Welfare Solicitors can take some of the stress out of the procedures.
Is legal aid available?
Yes. Non-means tested legal aid is available in some Court of Protection cases.
Anyone subject to the Deprivation of Liberty Safeguard (DoLS) is entitled to legal aid for representation to bring a challenge before the Court of Protection, regardless of their financial circumstances.
Legal aid is also available in some other instances, subject to eligibility criteria, including the merits of your case and assessment of your finances. We can advise you on your eligibility.
Should you not qualify for legal aid, there is also the option to secure representation on a privately paying basis.
Put your mind at ease, and speak with a solicitor regarding your situation now. Drop us a call using the phone number here, or send an enquiry through the contact us page.
Testimonials and Client Feedback
Sadé Asker – Court of Protection Solicitor
“Thank you [Sadé Asker] for being so helpful and patient with us. Thank you for all your help and support throughout what was an extremely challenging and stressful process.”
(5* Review from Anonymous Client, 01/02/2022)