New Protection for people with Alzheimers, Dementia and learning disabilities
People who are living in a care home which faces closure may now be able to use human rights law to protect their placement. However, trends in current case law mean that only those whose placement is funded by their Council can access this protection, and so the situation is different for self- funders.
New mental health and mental capacity legislation means new rights for people with no capacity or only limited capacity in residential care, i.e. someone who is aged 18 and over, and who suffers from a mental disorder or a disability of the mind (such as dementia or a learning disability that affects their level of capacity), and who lacks the capacity to give informed consent when making decisions about their treatment or their care.
The new mental capacity provisions mean that all providers of care in a residential setting must now develop procedures to comply with the new legislative framework, to avoid a possible action for deprivation of an individual’s liberty (Article 5 of the European Convention on Human Rights). Deprivation of liberty can occur in circumstances as wide ranging as where a decision is made to confine a person to the home, even if it is for their own safety, to restriction of family and other visits, to not allowing trips out of a care home. Effectively where any step is taken that will restrict a person’s liberty, prior permission must be sought from a specialist panel or the care home will face liability in the Court of Protection for a breach of the right to liberty. The new procedures must be followed from 1 April 2009 and any care provider, from the smallest of care homes only offering residential accommodation to one or two people, to larger companies, must comply with the new procedures or be liable.
These new safeguards mean better protection for vulnerable individuals and increased scrutiny of care home practices, and mean family members and advocates can force care homes to make careful decisions about restricting a person’s freedoms. People suffering from conditions like Dementia and Alzheimers can no longer be routinely restricted in their social and active life, unless it is in their best interests.
This Article has been written by Hannah Graves, a solicitor specialising in many aspects of the care and health sectors, such as policy, funding, human rights and immigration. More information is available on our website: www.fjg.co.uk or by telephone on 01206 835 270.