Legal Eagle: The rules around being forced to go into care
My elderly father has dementia. He was recently admitted to hospital. He had carers going in to his home four times per day but he was reluctant to let them in and wasn't eating and drinking properly or taking his medication.
Whilst he was in hospital he was assessed and it was recommended that he go into a care home.
I agreed with this decision and now I have been told he is subject to something called DOLS – what does this mean? My father is very unhappy about being in the care home and is demanding to leave.
DOLS means the Deprivation of Liberty Safeguards which are a set of rules which were introduced by the Mental Capacity Act 2005.
They can only be used if the person will be deprived of their liberty in a care home or hospital, which means that they are not free to leave the care home or hospital and are under control and supervision.
The person must also lack the mental capacity to make the decision to live in the care home. Care homes or hospitals (known as the “managing authority”) must ask a local authority (the “supervisory body”) if they can deprive a person of their liberty.
This is called requesting a standard authorisation.
There are six assessments which have to take place before a standard authorisation can be given with the main ones relating to whether the person lacks the mental capacity to decide to reside in the care home to receive care there and whether it is in their best interests to be there.
Your father will have been assessed by a doctor for the mental capacity aspect and also by a best interests’ assessor, often a social worker, to establish whether it is in his best interests to be in the care home.
You should have been consulted by the best interests assessor as part of the process.
If the local authority is satisfied the criteria are met they will grant what is known as a “standard authorisation” authorising your father to be deprived of his liberty in the care home.
The standard authorisation can be given for up to 12 months but since your father is objecting it is likely that it will be for a shorter period.
One key safeguard is that your father will have someone appointed with legal powers to represent them. This is called the relevant person’s representative (RPR) and will usually be a family member or friend.
Sometimes however family members can find this role difficult especially if their relative is objecting and they agree that their relative should be in a care home.
In these circumstances a paid RPR can be appointed. One of the RPR’s roles is to consider making an application to challenge the standard authorisation in the Court of Protection.
Free legal aid is available in these circumstances and the court will review whether the criteria for the standard authorisation are met and has the power to terminate the standard authorisation which may enable the person in the care home/hospital to reside elsewhere, which could include a return home.
Solicitors with a legal aid contract to undertake mental health work are able to bring the court proceedings on the instructions of the RPR.