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The pandemic has highlighted the difficulties faced by families whose relatives are residents of care homes and whose visiting rights were restricted during lockdown. Perhaps the most concerning aspect is in relation to the hundreds of elderly and vulnerable people who were moved from hospitals to care homes amidst confusion over the legal rights of adults with incapacity.

Whilst there is, undoubtedly, sympathy to be had for the pressure which hospitals faced during the height of the pandemic, it cannot be the case that the most vulnerable in society were moved simply due to what appears to be a lack of understanding of the law; particularly in relation to Powers of Attorney.

What is a Power of Attorney?

A Power of Attorney is a document which you grant in lifetime appointing someone to attend to your affairs should you become incapable of doing so. This includes decisions regarding consent to, or refusal of, medical treatment, and living and contact arrangements. Contrary to popular belief, should you lose capacity to attend to your own affairs, your family cannot simply step in and take control for you. In order for someone to make decisions on your behalf, they would require to be appointed by you under a Power of Attorney.

In the absence of a Power of Attorney and if you have become incapable, it may become necessary to undertake a court process to have a Guardian appointed in order to look after your affairs.

The medical profession

Without a Power of Attorney or a Guardianship in place, the relevant decisions are entirely in the hands of medical and social services professionals who treat the person concerned. If someone is deemed to be incapable, the first port of call for the medical professional looking after someone who is incapable should be to ascertain if that person has a Power of Attorney in place. If so, this would identify the person who has been nominated to step in and look after the affairs of the person involved, including making decisions as to where they should live and treatment they should receive. Concerningly, this does not appear to be something routinely requested by medical professionals. In turn, this can lead to decisions being made on behalf of patients by medical professionals when this should, in fact, be the decision of the Attorney.

That being said, the medical professional caring for the person involved can restrict their free will in some way and reduce their independence if deemed to be in their best interests. This is the case where the person does not have a Power of Attorney in place, has not chosen where they will live in order to receive care or the type of care that they are to receive. Restriction of a person’s freedom in this way may amount to what is known as “deprivation of liberty”. This should only ever happen if it is in the best interests of the person involved – something which is arguable when looking at patients who were moved from hospitals to care homes during the pandemic.

Deprivation of Liberty only applies for people in care homes and hospitals. The Mental Incapacity Act 2005 includes a set of safeguards that aims to make sure that any care that restricts a person’s liberty is appropriate and in the person’s best interests. The care a person receives can only deprive them of their liberty if they have not consented to it. If a hospital plans to deprive a person of their liberty, they must get permission following the Deprivation of Liberty safeguards. Again, it is arguable that in the case of moving patients from hospitals to care homes during the Coronavirus pandemic, these safeguards were not followed.

Whilst there was likely a need to free up hospital beds to treat Coronavirus patients, extreme care must always be taken when dealing with adults with incapacity; and in particular knowing whether that person has a Power of Attorney and what exactly the powers allow the Attorney to do. Equally, the best interests of the person involved must always be at the heart of all decision making. Whilst a complex area of the law with no blanket approach, there are certainly specific rules which must be followed before any decision making can be taken – whether that’s on the part of the medical profession or the Attorney involved.

If you think you may have been affected by the removal of a family member from a hospital setting to a care home during the Coronavirus pandemic, please do not hesitate to get in touch with us to see how we may be able to assist.

Blog by Ailidh Ballantyne, Solicitor

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