Are You Scared You’ll Be Forced into Care?

If you’re worried that you could be forced into care against your wishes, you’re not alone.

Elderly clients regularly tell me that this is one of their biggest worries. Are they right to be concerned and if they should find themselves in that position is there anything they can do about it?

Forced into care – is it a real or imagined risk?

Here’s an example of how real the risk of being moved into a care home against your wishes can be.

Local Government Ombudsman and Cambridgeshire County Council 2015

The Local Government Ombudsman has recently upheld a complaint made against Cambridgeshire County Council who moved an elderly man into care against his wishes and despite objections from his family.

Cambridgeshire County Council made the decision to move the man into a care home having assessed him as incapable of making a decision on that issue for himself. The man was moved 14 miles away from his own home. It was alleged his wife had to catch two buses to visit her husband.

The council was criticised by the Local Government Ombudsman (LGO) on a number of counts. These included failing to keep proper records of their mental capacity assessment of the man and failing to fulfill its obligations under the Choice of Accommodation Directions. These directions give guidance to social services departments to ensure that when they arrange a placement in a care home they allow the individual reasonable freedom to ‘exercise genuine choice’ about where they live.

Of course, the problem is there is often a gulf between what the council considers reasonable freedom to choose and what the individual actually wants.

Are there any protections for the individual?

Where someone is deprived of their liberty for example, by being moved to a care home where they don’t have freedom to come and go as they please, and they object, a procedure laid down under the Deprivation of Liberty Safeguards must be followed.

Authorisation to deprive the person of their liberty must be obtained. If that procedure is not followed properly the deprivation of liberty is unlawful and can be overturned.

Under the Mental Capacity Act 2005 anyone who makes a decision on behalf of a mentally incapacitated person must consider whether the action they are taking is genuinely in the best interests of that individual and whether there is a way of achieving the same outcome that is less restrictive of the rights and freedoms of that individual.

In the Cambridgeshire County Council case, by failing to keep proper records of their mental capacity assessment of the man they placed in care, the Council left itself open to criticism that its social care team had not acted in his best interests and had not chosen a less restrictive way of dealing with his care needs. It is possible to challenge a ‘best interests’ decision through the Court of Protection.

What can you do to avoid being moved into a care home?

Let’s be honest, it’s not always possible to avoid being moved into a care home.

There can be reasons, such as your health and safety being at risk, that make it impossible for you to stay in your own home.

But if you want to have more control over where you live and what type of care you receive it’s vital to plan ahead:

• Make Lasting Powers of Attorney for property and finance and health and welfare
• Adapt your property (where possible) so it’s easier to have care at home
• Give clear written guidance to your attorneys on your care wishes
• Find out what alternative types of care are available in your area

Cambridgeshire County Council 13 016 395

We can help with a wide range of care issues, including Lasting Powers of Attorney, Court of Protection and Deprivation of Liberty issues.

We can also check care home contracts and assist with complaints against social services assessments and problems about care fees funding.

Call us now on 0115 7722129

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About the author: Rosamund Evans is a solicitor and registered trust and estate practitioner and specialises in age and disability issues. Read more

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