Can I take Mum out of her care home?
Posted on 26th January 2021
A warm and friendly care home is often the best place for a vulnerable elderly person to live.
If your parent has been unwell or has been diagnosed with dementia, for example, they might not be able to live safely at home. They might be struggling with day-to-day activities like washing and preparing food. Round-the-clock support from trained professionals in a safe environment could help them to live their lives more fully and reduce their anxiety.
However, during the coronavirus pandemic some relatives have been concerned that they are unable to visit their loved ones and have been worried about the health risks they face. They have been shocked to discover that they can’t take them out of the care home to live with their family.
DoLS - why Mum can’t leave her care home
If a parent or elderly relative is receiving care in a hospital or care home, members ofstaff might need to make decisions about their daily routines and, for their own safety, they might not be allowed to leave.
In cases where someone hasn’t freely chosen where they will live or receive care, or what that care should be, they might be subject to ‘deprivation of liberty’ safeguards, known as DoLS.
Deprivation of liberty is when a 'person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements’.
The safeguards are included in the Mental Capacity Act (MCA). There are tests that aim to make sure that care which restricts someone’s liberty is appropriate and in their best interests. Normally assessors are appointed by the local authority, or the NHS, to review someone’s mental health and to consider their best interests. Carers, family members or close friends should be consulted, and the situation should be reviewed at least once a year.
Once DoLS are in place, as a friend or family member, you won’t be able to take your loved one out of the care environment without the agreement of the members of staff responsible for their care. You will need to demonstrate that the actions you are proposing are in their best interests and the care team will have to agree.
Is there an alternative to DoLS?
The government says that decision-makers about your mother’s care should consider whether she has already made a valid decision in advance to refuse a specific treatment. If she has done so, then the treatment can’t be provided. For example, if she has a life-limiting illness she might choose to say that she would not want to receive further treatment when her condition reached a certain stage.
However, because life is uncertain, she might also choose to appoint a care and welfare attorney using the lasting power of attorney (LPA) process. Her attorney can make decisions for her as circumstances change.
However, to use either of these options it is important that she has mental capacity to make choices for herself. If she loses mental capacity to make decisions, then neither option will be available to her.
Acting in your mother’s best interests
If your mother created a care and wellbeing LPA before she entered the care home, and appointed you as her attorney, you would be responsible for making decisions in her best interests. If you have worked closely with the people providing her care, DoLS might never have been needed. You will be in a much stronger position to take her out of the care home environment if you think it is her best option.
If your mother’s carers don’t agree that you are acting in her best interests, you might need to apply to the Court of Protection as a last resort.
The wording of your mother’s LPA is important to give you the best possible chance of demonstrating that you are making the decisions she would have wanted.
If you would like some advice, please get in touch.
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