Lawyers are never top of the popularity lists, unless the list is top 10 annoying professions. Even as a Mental Health Lawyer I don’t think I am necessarily going to change the views towards the whole profession, but I would just like to open the door a little on the challenges we face and the way we try to help. A recent case brought this home to me.
I got a call from an Independent Mental Capacity Advocate (IMCA) asking if I could I help. I was told a young woman was sadly dying of liver disease with less than a week to live. She was in a care home and asking to go home to die. Some of her family supported her wishes and the care home recognised this as a ‘deprivation of liberty’ (DoL).
We cannot be deprived of our liberty unless it is authorised in some way. In this case the local authority had issued a ‘deprivation of liberty authorisation’ (DoLA). This meant that she had the right to appeal to the Court of Protection. Unfortunately, her condition had deteriorated to such an extent that she was not able to do this herself.
The IMCA had been appointed as her Relevant Persons’ Representative within the DoLA which meant that he could appeal on her behalf. This type of application attracts non means tested legal aid so people are eligible for legal aid irrespective of how much money they have got.
We moved very quickly. With the help of five members of my Court of Protection team we prepared the case. We researched the background information, spoke to her partner and brothers and arranged for an urgent hearing which took place within days. As in most of these cases everyone involved is motivated by what they think is best for her.
What can we learn from this case?
- The ‘next of kin’ does not have the power to decide.
- Because she now lacks capacity to decide to go home for herself, someone else has to decide.
- Had she made a Health and Welfare Lasting Power of Attorney (LPA) and an advanced decision to refuse treatment when she had capacity to do so it is more likely her wishes would have been respected.
- The care team decided it was in her best interests to remain in the care home until she dies. Her care amounts to a DoL and therefore has to be authorised.
- Everyone followed the correct procedures and an independent person called a ’best interests assessor’ and one other expert. They assessed the lawful criteria for a deprivation of liberty authorisation had been met.
- This allowed the local authority to authorise her to remain in the care home to die.
- The RPR (who is also the IMCA) has the right to appeal and he contacted us.
- We lodged the appeal which meant that a Judge of the Court of Protection makes the decision as to whether she goes home. This is appropriate because there is a lot more to a decision like this than purely medical issues.
- This case also demonstrates that Peter Edwards Law can undertake work many miles from Liverpool. We were able to prepare this highly complex case by mobilising our team even despite the woman being in a nursing home about 100 miles from our offices.