A parent or family member has signs of mental incapacity and they are not allowed leave their residential or healthcare facility – does this sound familiar?

It is not uncommon to be told by health or care services that they think your relative lacks the mental capacity to make certain decisions (for example, whether to be cared for at home or in a nursing home or healthcare facility) and for disputes to escalate because the statutory services and the family have very different opinions about mental capacity and what decisions should be made. These disputes can sadly arise at times of crisis and can lead to a loss of trust between the family and the professionals involved in planning the individual’s care.

If you can relate to this, let me shed some light on what might be happening in this situation:

1.    Whether a person has mental capacity or not does not in any way diminish their constitutional rights, including their right to liberty.

2.    The fact that a person may not have the ability to make a decision about a particular matter does not mean that their wishes in relation to it can be totally disregarded.

3.    A person always has the right to have their voice heard or represented in any process concerning them. If the person cannot speak for themselves then they must have a legal representative or other advocate who is otherwise not involved in the dispute appointed to hear their voice and represent it to the court.

It must be borne in mind that a person’s lack of capacity to make a decision does not mean they can be detained in a residential or healthcare facility against their will. People with impaired mental abilities are protected by the same constitutional guarantee as any other person – that they will not be deprived of liberty. Similarly, the fact that the measures taken by the healthcare facility are in the best interests of the person is a matter that goes to the justification of deprivation of liberty, and not to the question whether there was in fact a detention.

So who decides?

A residential or healthcare facility has no overriding legal right to appoint itself as a substitute decision maker for a person and no legal right to make decisions on their behalf.

A healthcare facility has however a duty of care in the context of discharging a patient to ascertain whether the patient themselves wants to leave or is being pressured into leaving by a third party. Where there are reasonable grounds for believing there is undue influence the facility can prevent the discharge while this is being assessed.

If the healthcare facility believes that the person would on discharge be unsafe and either:

     i.        the person is unable to understand

    ii.        incapable of making the discharge decision for themselves

  iii.        is under the influence of a third party

then the facility can briefly detain the patient under the “doctrine of necessity”.

Residential and healthcare facilities must ensure that there is a mechanism to ensure that the voice of the patient is being heard. This can be achieved by the appointment of an independent advocate for the patient and the facility and family must listen to the voice and wishes of the patient through that advocate.

In these circumstances the residential or healthcare facility must seek the assistance of the courts ensuring that the following rights of the patient are observed:

a)    Patient to be separately legally represented, through the Legal Aid Board if they qualify under the means testing.

b)   All Medical Reports or other reports which the Wardship Court is to rely on to make a person a ward of court should be automatically shared with the person to enable them to be challenged.

c)    In the course of the wardship proceedings – or any other court proceedings seeking a Protective order – the patient’s wishes in relation to a particular matter should be taken into account by the court, even if they are subsequently taken into wardship.

d)   Court must hear the voice of the patient, if necessary through an advocate or other intermediary who is not otherwise involved in the dispute.

e)    It will be for relevant court to decide whether the circumstances require protective orders which affect the right to liberty of the patient in their best interests.

If you believe that a residential or healthcare facility are wrong to conclude that detaining your relative was in their best interest we can advise you on how to challenge that decision.

Capacity law should respect every persons independence, dignity and freedom to make their own choices in line with their right to self-determination.


Published On: November, 2020|Categories: News|
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