How often do care homes tell family members things along the following lines…?
“Sorry, we can’t give your relative that …”
“Without authority, we can only administer this…”
“We will need formal authority first before we can take instructions from you about your relative’s care needs…”
“We can’t allow you access to your relative’s notes and records or release copies to you without proper authority…”
Patients who lack mental capacity will need someone to speak for them and act in their best interests to ensure that they are looked after, kept safe from harm and get the proper care and attention that they need when they can’t communicate their needs themselves.
‘Mental Capacity’ means the ability to make a specific decision at the time it needs to be made. A person with mental capacity has at least a general understanding of:
- the decision they need to make;
- why they need to make it;
- any information relevant to the decision;
- what is likely to happen when they make it.
They should be able to communicate their decision through speech, signs, gestures, or in other ways.
Tackling consent: Keeping control if your relative lacks mental capacity
Mental capacity can be impaired in many ways. For example, if an individual has suffered a life-changing event such as a catastrophic stroke, or sustained a severe brain injury following an accident, or developed Dementia, Alzheimer’s or other cognitive impairment.
Patients lacking mental capacity and the ability to make a specific decision or to consent to something, are in a vulnerable position and need protecting for their own safety and from coming to harm (and sometimes, for the safety of others).
If an individual lacks mental capacity and cannot provide informed consent to treatment or other aspects of daily living then they will need to have someone make decisions on their behalf and act in their best interests. That could be a relative, friend, carer or appointed professional (or Deputy appointed by a Court).
Avoiding conflict with the care home
As a close relative who has been looking after a spouse, parent or child, visiting and attending to them on a daily basis whilst in a care/nursing home environment, you may feel an absolute entitlement to give instructions or make decisions in relation to their daily healthcare and social needs.
However, what you consider to be in your relative’s best interests, for example, how they like to be dressed, fed or cared for, may conflict with the care home’s own regime or protocol for providing care, care practices or policy directives.
Sometimes, your personal requirements, requests or desires might be refused by care home staff. This can lead to conflict and arguments with the care staff, usually borne out of sheer frustration, as you may feel that you know your relative best, can interpret their needs, and understand or know what they want or what is best for them.
Don’t assume because you’re a carer or close relative that you have automatic entitlement and authority to make decisions for your relative. Some care homes are more accommodating and will, of course, listen to family members and take on board what they want whilst caring for their relative. However, to avoid conflict and take control of decision-making for your relative you need to have legal authority.
Let’s explore the different options available:
Lasting Power of Attorney (LPA)
When caring for a living relative, a Lasting Power of Attorney gives you control over their health and welfare and/or property and financial affairs. Without a valid Power of Attorney in place, you may be powerless to make such relevant and critical decisions on their behalf.
The LPA has to be made whilst your relative still has mental capacity. It is too late once they have lost capacity, and instead, alternative means of authority will be needed, which may be more problematical. See below.
Under the LPA, decision-making is effectively transferred to the appointed Attorney who can make essential decisions about their relative’s health and welfare, and/or property and financial matters quickly, as if their relative were making those decisions for themselves. The LPA protects their financial and health interests at a time when they can’t do so reliably themselves and ensures that their appointed representative (Attorney) will act in their best interests at all times.
Otherwise, without LPA authority, you will have to undergo a lengthy and expensive application to the Court of Protection to seek a Deputyship Order. In the meantime, there can be a frustrating delay, causing anxiety and conflict, whilst you may be lawfully prevented from taking critical decisions in your relative’s best interests.
An LPA automatically ceases on death. So, the Executors appointed under the Will, will then need to apply to the Probate Registry for a Grant of Probate. The Grant gives them authority and power to continue acting and making decisions on behalf of their deceased relative’s estate.
For more information, you will find these articles helpful:
‘Best interests’ argument
If your relative lacks mental capacity and you don’t have any specific legal authority to act, eg under a Lasting Power of Attorney, then the fall-back position is to argue that you are acting in your relative’s ‘best interests’.
Argue that the care home should consult with family (and friends or medical practitioners) who have a genuine interest in your relative’s health and welfare. Insist that your views and wishes are taken into consideration in any decision-making process and that the care home are acting in your relative’s best interests, not their own.
Remember, acting in ‘best interests’ is not as authoritative as acting under a Lasting Power of Attorney.
Deprivation of Liberty Safeguards (DOLS)
What can you do if your relative is deprived of their liberty?
Deprivation of Liberty is a legal procedure that provides extra protection and safeguards for vulnerable individuals, in hospital or resident in a care home, who lack mental capacity, and whose liberty is being deprived in contravention of their Human Rights.
Deprivation of Liberty means keeping or restraining an individual in a secure environment, not allowing them freedom to go anywhere without permission or close supervision or keeping them under constant supervision. One has to consider whether deprivation of liberty is in the individual’s best interests, necessary to prevent them from coming to harm, and a proportionate response to the likelihood of them suffering harm?
If your relative is deprived of their liberty, they must have a Relevant Person’s Representative (RPR) acting for them to protect their interests.
An RPR is usually a friend or family member, as they will inevitably know the individual best, and will be more committed to ensuring that their rights are being properly safeguarded.
The RPR is trusted to act in the person’s best interests
In the event that there is no family member or friend able or willing to undertake the role of RPR, the Local Authority will appoint a paid representative, who has to be 18 years or older, is able to keep in contact with the relevant person, and who is willing to take on the responsibilities of the appointment.
As part of the RPR’s duties, their authority will usually include some of the following responsibilities, to name a few:
- Protecting the individual’s interest throughout the DOLS process; maintaining face-to-face contact with the individual being deprived of their liberty, and generally representing and supporting them; obtaining information about the relevant person’s care or treatment; making decisions in the individual’s best interests – taking into consideration any wishes or feelings they may have previously expressed, and any religious beliefs, cultural background or moral views, which may influence the RPR’s decision making; consulting widely with the individual’s Attorney (under a Lasting Power of Attorney) or Deputy (if appointed by the Court of Protection), or indeed anyone else involved in the individual’s care, or who has an interest in their welfare – to ensure all decisions are made in their best interests.
For more information, read: Using legislation to safeguard your relative in care – Deprivation of Liberty Safeguards (DOLS)