More protection for vulnerable people in care homes and hospitals

This entry was posted on Wednesday, June 24th, 2009 at 8:11 am

New safeguards have been introduced to protect vulnerable people from abuse in care homes and hospitals.

The Mental Capacity Act Deprivation of Liberty Safeguards came into effect on 1st April 2009. The legislation means that a care home or hospital must apply for permission if it believes that it needs to deprive patients of their liberty for their own wellbeing and safety.

Applications have to be made to the local health trust or council. Trained assessors will then ensure that certain conditions are met before permission is granted. The assessors will need to be satisfied that the deprivation of liberty is in the person’s best interests to protect them from harm and that it is a reasonable response to the likelihood of the person suffering harm.

The person must be over 18 and have a mental disorder but must not be subject to a requirement of the Mental Health Act. The person must also lack the capacity to consent to their own care or treatment.

However, authorisation must not conflict with an advance decision made by the person before they lost capacity, or a valid decision made on the person’s behalf by the donee of a lasting power of attorney.

The Department of Health estimates that there may be about 21,000 applications in the first year with approximately 25% being authorised.

Care Services Minister Phil Hope said: “Vulnerable people will now have rights where previously they had none. Before this law came in, care homes or hospitals were able to lock someone up or sedate them without their consent, without that person having any kind of right to appeal or protest.

“This law will only be used as a last resort where it is necessary to keep a person safe and all other options have been exhausted. Protective care must be the exception and not the rule.”

The new rules provide welcome safeguards but it is also possible for people to take significant steps towards providing for their future care themselves by registering a Lasting Power of Attorney (LPA).

LPAs enable you to nominate a person who can make decisions on your behalf should your health fail and you are unable to make such decisions yourself. They allow you to set out what care and health treatment you should receive and, as the new safeguards now stipulate, a care home or hospital would not be able to contradict decisions a person made about their future care before they lost mental capacity.

LPAs also allow you to nominate someone to make decisions on your behalf in relation to your financial affairs.

Please contact David Phillips and Partners’ wills and probate team on 0800 027 7870 if you would like more information about LPAs, wills or estate matters.