We undertake work in relation to health and welfare in the Court of Protection sphere, which predominantly relates to challenges against Deprivation of Liberty Authorisation’s (DoLs), also known as s21a appeals.
What are DoLs?
DoLs are utilised by Local Authorities when individuals lack capacity to make their own decisions about their care needs and accommodation. The most common time this occurs is when individuals have a medical condition, such as Dementia or Alzheimers, which impacts upon the individual’s decision-making ability. DoLs are therefore used to make decisions in the person’s best interests, as to where they should reside and the care that they receive.
A DoLs is implemented following a number of assessments, which are undertaken by the Local Authority. This includes assessments of the individuals’ mental capacity, as well as looking at their best interests, needs and the views of others such as family members or social workers which may be involved.
Given the large restrictions DoLs can place on an individual’s freedom, they are only to be used where absolutely necessary, and are the least restrictive option available to ensure an individual’s care needs can be met.
How can they be challenged?
Given the restriction to the individual’s liberty, they have a right to have a challenge brought against the DoLs in circumstances where it is clear they are objecting to their current placement.
The most common form of this is either through verbal objections to Care Home staff, family etc, or through actions, such as absconding from the Care Home/Hospital.
This challenge normally comes through the individual’s Relevant Person Representative (RPR), who is appointed when the DoLs is implemented. The RPR can be a wide variety of people, from family members to a paid advocate. It is ultimately their responsibility to assess the individual’s views and wishes, and therefore bring a challenge to the Court of Protection on their behalf, with the assistance of a solicitor if felt necessary.
We commonly assist both family members and paid RPR’s to bring these applications to the Court of Protection.
What does the challenge mean?
The application is predominantly brought to look at both the DoLs, and whether it is necessary, as well as the individual’s current care and accommodation.
Once an application has been brought to the Court of Protection, the ultimate job of the Court is to look at the evidence made available, i.e. any alternative care provisions identified, risks of remaining at the current placement etc, and make a decision as to whether the placement is in the individual’s best interests.
Where we represent the individual in question it is therefore vital to ensure that all other alternative accommodation/care options have been considered, and that the current care regime is the least restrictive available option.
As well as representing the individual subject to the DoLs (through their RPR), we also represent family members within the Court of Protection proceedings. Again, a key aspect of the DoLs challenge is for family’s views to be heard. Of course, family ultimately are extremely important within the Court of Protection sphere, and even where representing the RPR it is vital to ensure family are notified of the ongoing proceedings.
Ultimately, once all evidence has been prepared and reviewed a decision can then be made either by the Court or by agreement of all the parties to the proceedings, as to whether the current care and accommodation arrangements remains in the individual’s best interests. If not and alternative accommodation or care has been identified, then the Court has the power to sanction this move.
