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Home » DoLS placements, best interest and the ‘least restrictive option’

DoLS placements, best interest and the ‘least restrictive option’

Retaining information: man looking out of window

There have been a number of high-profile Court of Protection (CoP) cases this year on the subject of DoLS placement and provisions. These cases each raise questions around the least restrictive option for the individual, what classes as ‘best interest’, and what do we mean by proportionate, reasonable and justifiable care.

In this blog, we share some of the most interesting cases that have come to light recently, including the best interests of an elderly lady with hoarding disorder, and the surprising challenges of relocating someone to another country that does not have a DoLS equivalent in law.

Hoarding disorder and best interests

In the case of Local Authority vs AC & GC (2022) EWCOP 39, the relevant person AC applied to appeal her temporary placement in order to return home to live with her son, GC.

AC is 92 years of age, and has a diagnosis of Alzheimer’s as well as hoarding disorder. Meanwhile her son GC also has recognised hording disorder, as well as Asperger’s, OCD and a range of anxieties. In order to clean her home, AC had been given a temporary placement within a care home.

This case is a particularly interesting read as it explores the capacity of both AC and GC surrounding an appeal to the courts to return home, taking into account multiple issues and factors. It considers capacity for the decision to return home, capacity for finances of the relevant person, care needs, presentation of hoarding and associated risks as well as need needs of AC’s son, GC. In doing so it is recognised that GC may not have capacity to manage his own property and affairs and therefore if suitable to hold the position of Lasting Power of Attorneys (LPAs) for his mum or if a deputy should be assigned.

Throughout this case, the importance of AC’s individual wishes were recognised and kept at the centre of the case being held. It is a great example of the Mental Capacity Act in practice, respecting people’s wishes and seeking to promote a quality of life, as safely as possible, with the least restrictive measures in place.  

The outcome was that AC would be allowed to return home on a trial basis as the risks were deemed manageable and worth taking given the hope and expectation of improvements in the coming weeks and months.  

“Ultimately what has persuaded the Official Solicitor that a trial at home is in the best interests of AC is the consistency of her wishes to return, with her having such a strong sense of belonging to her home… there is no doubting the importance of her relationship with GC, nor her strong desire to become reunited with her pet cat… it is these issues which are of magnetic importance in this case”

(Paragraph 34)

Returning to one’s home country

In the case of H (2022) COP hearing 13488785 on 8th September, His Honourable Judge Paul Mitchell considered the case of Mrs H, an Irish national who had previously moved to England to live with her daughter, but has since been moved to an assisted living facility in the same city as her daughter’s home. In this case, while under DoLS, H has expressed an objection to her placement and has made a clear articulated wish to return to the Republic of Ireland.

Open Justice refers to a number of similar cases regarding a vulnerable adult’s objection to their placement and clear voiced wish to relocate to their place of birth overseas or to another country to be near family. This helps to paint a clear snapshot of some of the most recent case law around the matter being addressed. Further considering the degree to which equivalent Deprivation of Liberty Safeguards (DoLS) legal provisions are available to support and protect.

According to Open Justice, H has been residing in the current placement for a significant time, with the council seeking to identify legitimate options through the Irish Ambassador. It was recognised that due to presentation of health at times, many possible placements had declined.

There is also then the question of whether or not there is any equivalent of DoLS in the Republic of Ireland, which would provide a legal framework for requiring H to remain in any care home to which she might be transferred.

This case continues to proceed, with a further hearing set for November.

A return to Jamaica

In a somewhat similar case, Mrs Justice Lieven heard the case of an 89-year-old man, XX, whose place of birth was Jamaica and who wished to return. XX has resided in the UK since the 1960s. However, since the death of his wife in 2016, XX’s health has deteriorated, which led to him being placed under DoLS in a care home in 2020. XX has extended family in Jamaica, one of whom (AA) supported representation for returning.

During the case, those present actively sought XX’s Best Interest, identifying his historic and present wishes, noting wish to return and stay there. While further exploring options, risk and professional consultation on all relevant matters.

Mrs Justice Lieven recognised risks present, however voiced that these can be mitigated. Mrs Justice Lieven proceeded to powerfully conclude:

“There are also in my view intangible benefits that lie in the nature of human feeling and experience for XX to spend those last years with a loving family around him rather than being cared for by strangers in a care home. It is a benefit hard to explain or quantify…

There are also other intangible benefits that still matter to any human being despite having lost capacity and perhaps having limited understanding of the outside world. The benefit of being in the place of his childhood, with the smells of that place, with the food of his childhood and also surrounded by religion of his family that was certainly important to him in the past. Those things matter in ways that are hard to articulate, and possibly matter even more to someone approaching their last days.”

(Paragraphs 32 and 34)

Respecting the individual

These three cases lead me to reflect on a quote shared on Twitter by @MCAteamBradford (and others):

“Where it is possible to identify a course of action that a person would have taken if they had capacity, then a departure from that course of action must be justified by health and care professionals involved. The greater the departure the more compelling must be the reason/evidence for doing so.”

This principle is extremely important in the Mental Capacity Act, and one that has been respected in each of the cases shared above. It reminds us to focus on the individual and act in a way that is aligned with what they would have done were they not under DoLS. The greater the departure from what they would have wanted were they to have capacity, then the greater the justification needed to act against their wishes.

Thankfully, in each of the cases above, the CoP is working as intended – protecting the rights of the vulnerable and seeking to work in their Best Interest. While there are clearly still some technical legal issues with the case of those returning to countries that don’t have the same protections we have in the UK (such as in the case of Mrs H above), we hope that these issues will be resolved and each of these individuals can find peace and happiness in their placements.

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