28
Apr

When Caring For Family Is Breaking the Law

Hannah MacKechnie Read 709 times

When Caring For Family is Breaking The Law

Caring for a relative at home can be emotionally and physically challenging, and involves decisions that often you would rather not have to make. When dealing with dementia and Alzheimer’s, stress and emotions become even more amplified as your family member’s ability to remember basic information is diminished, and you realise the full impact this has.

Imagine your father has difficulty remembering his address and at times his name. Would you make a choice to lock the front door and hide the key? Ensuring a much needed night’s sleep in peace and knowing that he is safe and can’t get lost or come to harm.

Susan and George*

Susan asked the carers at Radfield, if after putting her elderly father George to bed in the evening that they would lock the house and leave the key in a keysafe outside the house. She felt this would be in her father’s interests, as he had signs of dementia and it would give her peace of mind that he was safe. Once the carer arrived the next morning, they could let themselves in to wake George and help him out of bed.

Susan was unaware that if George could not let himself out of the house, then this would be considered an infringement of his liberty and be against the law.

Radfield gently discussed the situation with Susan so that she understood the legal implications around ‘deprivation of liberty’. We suggested and agreed that in addition to the key being left in the keysafe, that George had access to a backdoor key if he needed to leave the house.

It might feel like an innocent choice made from love, to keep someone safe from harm but you could risk being open to prosecution and potentially be charged with false imprisonment, kidnap and/or wilful neglect.

A 2017 article in the Telegraph, highlighted this little known issue that families are risking breaking the law by locking their family members in the house for their safety.

The Law Commission, cited in the article, estimates that 53,000 people are held in private homes in the UK without official permission.

Julia and David*

Last year, Radfield carers arrived in the morning to attend to Julia, a lady in her eighties with Alzheimer’s and discovered that outside her bedroom was a locked stair gate blocking her access downstairs.

Our carer’s concern was that Julia might try to climb over the stair gate and put herself at more risk than if the gate was not there at all. In addition, without access to a key for the locked gate, Julia was being deprived of her liberty.

Julia lived with her son David and he thought that he was looking after his mother by installing the stairgate. He had concerns about her falling down the stairs in the night but in his efforts to keep her safe, David was unknowingly breaking the law.

The situation was complicated by Julia’s GP, who was not up to date on Deprivation of Liberty Safeguards training and after making a home visit had advised that the stairgate was acceptable. When we raised the subject with David, he chose to believe the GP’s word over ours that he was not doing anything wrong.

It took a lot of gentle negotiation with David and only after we discussed the situation with the GP did he get a consistent message, and understand that it wasn’t permitted. He removed the stairgate.

The Human Rights Act, Article 5

Legally, you are not allowed to reduce another person’s independence or restrict their free will which is considered as a ‘deprivation of liberty’.

Article 5 of the Human Rights Act states: “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” 

According to a Supreme Court Judgement 2014, there are two questions to be asked to determine if a person is being deprived of their liberty: • Is the person subject to continuous supervision and control? • Is the person free to leave? 

What are Deprivation of Liberty Safeguards (DoLS)?

The DoLS is a legal procedure in the circumstances where it is necessary to deprive the liberty of a person when they lack the capacity to consent to care and treatment, that would keep them safe from harm.

A residential care home or hospital must follow the process of the DoLS if they believe it is within a patient’s best interests. An assessment is requested from the local authority, who can grant authority for the deprivation of liberty.

‘Supported living’ is the term given to anyone who lives in the community (e.g. a family home) and receives care. In this instance, to obtain a deprivation of liberty order, the local authority must present a case to the Court of Protection for the court to grant authority.

Only 1,400 official DoLS cases were granted in 2016 and this highlights a huge gap between the estimated 53,000 who do not have official permission - leaving themselves on the wrong side of the law.

How to take care of a loved one without breaking the law

Legally, you cannot lock the bedroom door of your mother to protect her from wandering alone at night or restrict her independence by using stairgates. Neither can you lock external doors stopping her leaving the house. You would have to accompany her out of the house for her protection or try to talk to her to return to bed. Taking care of your mother becomes a twenty-four hour issue, as you monitor her movements continuously to ensure that she is safe.

At this point, many people decide that a residential care home is the only choice but support from a professional carer can help you to cope with the demands so that your mother, father, husband or wife can remain at home surrounded by their family.

“At Radfield Home Care we have encountered issues surrounding deprivation of liberty many times and it is always relatives acting in what they feel is the best interests of their loved one to ensure their safety. First, we explain how the law works and what is and isn't allowed. We will signpost people to the right information and resources so that they can more fully understand their obligations. Our carers are all trained in dementia care and Deprivation of Liberty, so they can deal with situations as they arise and we can provide care and support to alleviate the burden on relatives and provide them with much needed respite.” Dr. Hannah MacKechnie

Further resources

As the full extent of DoLS law stretches beyond the limits that we can cover here, we recommend the following sources for reference and more reading:

Deprivation of Liberty Safeguards (DoLS) at a glance, via Social Care Institute for Excellence http://www.scie.org.uk/publications/ataglance/ataglance43.asp

Deprivation of Liberty Safeguards (DoLS), explained via Alzheimers.org.uk https://www.alzheimers.org.uk/info/20032/legal_and_financial/129/deprivation_of_liberty_safeguards_dols/8

Court of Protection, makes decisions on financial and welfare matters for people who cannot make decisions at the time that they need to be made. https://www.gov.uk/courts-tribunals/court-of-protection

Office of the Public Guardian, protects people who may not have the mental capacity to make decisions for themselves. https://www.gov.uk/government/organisations/office-of-the-public-guardian

*The names used in the article have been changed.

Information is correct at the date of publishing (April 2017) but may be subject to change - we recommend referring to the resources above.