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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My 94 year old father is resident in a local care home and

Resolved Question:

My 94 year old father is resident in a local care home and I have today received a list of restrictions on my access to him because in the past I have spoken out regarding his care issues and imparticular his medication and diet. The 8 points include restrictions on my visiting to twice a week days to be agreed with the home, no late phone calls and they reserve the right to deal with my Father's medical needs and his dietry choices. I am his only relative and am in the habit of visiting on a daily basis unless I have been away. I would appreciate your answer.
Janice
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask in relation to the issues you mention you have raised previously with the care home, would the care home be able to claim that you had ever been abusive to their staff in any way or had these issues simply been raised in a perfectly reasonable manner by you please?

Joshua :

Would you like to continue?

Customer:

I have never been abusive although I have challenged practice when it is in my fathers best interest. I have been told that staff have been in tears because of this although I have never witnessed any one in tears. This happened when I walked in and found my father being fed in a recumbent position and I said that he should be sitting up.

Joshua :

Thanks

Joshua :

Finally could you confirm if your father has mental capacity please? If he does what are his views on the proposed restrictions?

Joshua :

I have an appointment in 10-15 minutes. Would you like to continue before I have to go or are you otherwise engaged at present?

Customer:

Limited he has been diagnosed with Alzheimer's for about 10 years. He is very compliant and would probably agree with what he is asked. No one has mentioned his views but each day when I leave him I say good night God bless and see you tomorrow to which he replies I hope so and he does seem to enjoy the time I am with him and he knows who I am. I

Joshua :

thank you. What became is proposing amounts in law to a deprivation of liberty. THe courts have held that any of the following can amount to a deprivation of liberty:



  • a patient being restrained in order to admit them to hospital

  • medication being given against a person's will

  • staff having complete control over a patient's care or movements for a long period

  • staff making all decisions about a patient, including choices about assessments, treatment and visitors

  • staff deciding whether a patient can be released into the care of others or to live elsewhere

  • staff refusing to discharge a person into the care of others

  • staff restricting a person's access to their friends or family.


 

Joshua :

accordingly, the care home would require a deprivation of liberty authorisation in order to impose the conditions you refer to. it is unlikely that they will have obtained the same though they may have done.

Joshua :

the first step is therefore to contact the care home manager and advise him that the restrictions they propose amount to a legal deprivation of liberty and asked them for a copy of their deprivation of liberty authorisation in this respect. If they cannot provide one, ask the care manager for a meeting in order to discuss how to resolve the position between you in order to avoid formal action on your part. If you are able to resolve the position so as to achieve relaxation of the restrictions they propose and this is an end to the matter. If you are not, then you can contact the local authority and ask them to carry out a deprivation of liberty investigation. the local authority is bound by law to do so.

Customer:

I f they have the deprivation would they have to provide me with the details of this and how can I find out?

Joshua :

if the local authority finds that the deprivation of liberty has occurred which based upon what you say must be the case based upon decisions by the courts in respect of what circumstances amount to a deprivation of liberty then the care home will be required to apply for a deprivation of liberty authorisation. This is a formal process whereby to independent assessors are appointed - a best interests assessor and a mental-health assessor. both of them must have appropriate experience and training to undertake this role. They must investigate whether the restrictions proposed are in your father's best interests. Your father is entitled to have a representative appointed as well and this would typically be a friend or family member and therefore could be you.

Joshua :

on completion of the assessment, deprivation of liberty order will be made outlining any restrictions that have been found to be appropriate which will replace the restrictions proposed by the care home or alternatively the deprivation of liberty order will be refused in which case the restrictions will be removed.

Joshua :

if you are not satisfied with the outcome of the assessment, you can ask for a review at any time after any deprivation of liberty order is imposed. An independent review is conducted by independent assessors. If you are dissatisfied with the outcome of that review, you can ultimately make an application to the Court of protection whereby a judge will independently review the review and make a new order either confirming the deprivation of liberty order, revising it or ordering it being lifted.

Joshua :

decisions with regards XXXXX XXXXX of liberty are taken based on whether any deprivation of liberty can be justified as being in your father's best interests not the care homes best interest.

Joshua :

is there anything above I can clarify for you any further?

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Customer:

Thank-you for your help. I do not have a direct email contact for the care home and do not really wish to discuss the issue on the phone as they have said they wish me to sign this extensive list of terms and conditions in order that they will extend the contract to keep my father there for another 28 days. without time to establish my fathers position in this and to ensure his wellbeing I am not sure what to do. I believe their actions constitute emotional abuse.

Joshua :

is your father self funding for care or is he funded by the local authority?

Customer:

self funding

Joshua :

Thank you.

Joshua :

The care home cannot simply kick your father out as they have a duty of care towards him. they are a private business and therefore can decide to withdraw service to your father however they would need to first contact the local authority or any attorney your father has appointed in order to us that alternative care is arranged for him. I therefore do not think you should consider being blackmailed effectively into signing such conditions and whether you sign them or not, they cannot contract out of the deprivation of liberty rules which form statutory legislation and your signing such conditions changes nothing

Joshua :

unless you are willing to agree to such conditions, which from what you say you are not quite understandably, the procedure to follow will be as above were hopefully you will be able to arrange something without the need for formal action but if not, there is considerable formal process available to you which is binding upon the care home.

Joshua :

If you do not have an email address for the care home, consider using post or fax to start the process as above

Joshua :

Are you happy with the information I have provided to you above or is there anything above I can clarify for you any further?

Customer:

I only received this letter this morning and so it is my intention to reply saying that I require time to reflect on the details and that I will be seeking further advice. Should I ask the question about the deprivation of liberty. If they do not have one how would they obtain one and how long would it take to obtain. Would they be obliged to tell me they had one.

Joshua :

your propose response seems perfectly reasonable. It is also quite in order to raise the issue of deprivation of liberty at this stage and you can simply do so by going on to say that you note that the restrictions they propose would amount in law to a deprivation of liberty as determined by the courts. In the circumstances, you can ask them to confirm whether they have applied for a deprivation of liberty authorisation and if so, please to forward you a copy. You do not really need to go any further than this at this stage in terms of threatening to take formal action. The care home manager will be familiar with deprivation of liberty safeguards and will know full well his obligations in this respect and the actions you can take if they have not obtained one.

Joshua :

is there anything else I can help you with?

Customer:

Not just now thank-you I am going to complete the letter and deliver by hand when I visit my father later. with many thanks

Customer:

Janice

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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