Dealing with Elderly parent situation help
Discussion
Hi
I’ve got a bit of a difficult situation with my mum.
I’ve not really had to deal with a situation like this before and I wasn’t aware of how the system works and therefore haven’t been able to exercise her rights properly.
The short version is - she had a stroke was in hospital for 3 or 4 months and from the hospital she was put into a mental health unit (under a section 2) against her will where she spent another 4 months and from there moved into care home where she now resides and has been deemed to lack capacity.
Im asking for help to find a solicitor to assist with an unlawful detainment case. This relates to my mother who was detained under Section 2 of the Mental Health Act, then was under an emergency DoLS referral for 14 days but continued being detained in a psychiatric ward for a further 2 months without being assessed under either the Mental Health Act or the Mental Capacity Act.
I have been advised I need a human rights solicitor who specialises in the Mental Health/Capacity Act but so far each firm I have contacted does not have the capacity to take on the case due to workload.
Does anyone know of anyone who could assist me in such a case?
Any help or advice would be greatly appreciated.
I’ve got a bit of a difficult situation with my mum.
I’ve not really had to deal with a situation like this before and I wasn’t aware of how the system works and therefore haven’t been able to exercise her rights properly.
The short version is - she had a stroke was in hospital for 3 or 4 months and from the hospital she was put into a mental health unit (under a section 2) against her will where she spent another 4 months and from there moved into care home where she now resides and has been deemed to lack capacity.
Im asking for help to find a solicitor to assist with an unlawful detainment case. This relates to my mother who was detained under Section 2 of the Mental Health Act, then was under an emergency DoLS referral for 14 days but continued being detained in a psychiatric ward for a further 2 months without being assessed under either the Mental Health Act or the Mental Capacity Act.
I have been advised I need a human rights solicitor who specialises in the Mental Health/Capacity Act but so far each firm I have contacted does not have the capacity to take on the case due to workload.
Does anyone know of anyone who could assist me in such a case?
Any help or advice would be greatly appreciated.
The Law and Practice related to DoLs and its interface with the MHA is a mess. There are huge variations in policy and practice between and even within Trusts and Social Services departments. The number of cases has become overwhelming and the examinations required are not core NHS practice, unattractively remunerated and legally risky so the authorities tend to prioritise the complex cases/families.
Almost all my dementia patients hospital patients were detained under section 3 if they couldn't be discharged at the end of S.2 to avoid ambiguity and to give them and their Nearest Relative rights of appeal. I'm a fairly hawkish MHA practitioner at one end of the spectrum of opinion.
If your mum's mental health problems were insufficient to warrant MHA detention then, at the end of the emergency DoL, it may be she may have been able to give consent - 'Are you OK staying here until we find you a care home bed?' was understood by some of my patients once the acute crisis was over and in these (not too common) cases there would have been no requirement for MCA/DoL. There may be other reasons why conscientious practitioners didn't proceed with DoL.
That being said, it may be that technically your mum may have had a period of unlawful detention and successful claims attract compensation which is quite punitive for the offending authorities. If that's the case, it may be that there is local cooperation and tolerance (mutual understanding that the volume of cases is overwhelming) or poor communication/lack of cooperation which allows lacunae to arise. The consequence is that there may be the NHS Trust, The Local Authority and any care home joined in your mums claim. So they'll either shrug their shoulders and say 'Fair cop guv' and pay up or they'll deploy their legal teams (which are paid for by the state) to either jointly defend or push the liabilty to the other organisation.
I would sincerely advise you to consider what you are planning. Is there anything about you mum's care or the decisions made that you are unhappy about? If so, is there anything that could be done now to improve the situation for your mum or take it down a different path which you sincerely believe in her best interests. This, I would suggest would be the most productive target for your energies. If all her care is satisfactory and you are seeking a remedy for a technical error in her paperwork then I'd suggest proceeding with caution. If you want the facts about what was going on; an aoplogy etc. then an enquiry/complaint possibly with the support of Trust PALS may be more effective.
IANAL but your as your mum would be the litigant, is likely that it would be the official solicitor which pick up her case adding another layer of complexity.
Your advice is correct. This is generally seen as the territory of Human Rights law as MCA/DoL is an legislative solution for a ECHR case. There are some amazing talented solicitors and barristers in this area but since they are colleagues, co authors and friends I wouldn't want to give a personal recommendation. If you google legal cases involving Deprivation of Liberty it will lead you to the small number firms which specialise in this.
Almost all my dementia patients hospital patients were detained under section 3 if they couldn't be discharged at the end of S.2 to avoid ambiguity and to give them and their Nearest Relative rights of appeal. I'm a fairly hawkish MHA practitioner at one end of the spectrum of opinion.
If your mum's mental health problems were insufficient to warrant MHA detention then, at the end of the emergency DoL, it may be she may have been able to give consent - 'Are you OK staying here until we find you a care home bed?' was understood by some of my patients once the acute crisis was over and in these (not too common) cases there would have been no requirement for MCA/DoL. There may be other reasons why conscientious practitioners didn't proceed with DoL.
That being said, it may be that technically your mum may have had a period of unlawful detention and successful claims attract compensation which is quite punitive for the offending authorities. If that's the case, it may be that there is local cooperation and tolerance (mutual understanding that the volume of cases is overwhelming) or poor communication/lack of cooperation which allows lacunae to arise. The consequence is that there may be the NHS Trust, The Local Authority and any care home joined in your mums claim. So they'll either shrug their shoulders and say 'Fair cop guv' and pay up or they'll deploy their legal teams (which are paid for by the state) to either jointly defend or push the liabilty to the other organisation.
I would sincerely advise you to consider what you are planning. Is there anything about you mum's care or the decisions made that you are unhappy about? If so, is there anything that could be done now to improve the situation for your mum or take it down a different path which you sincerely believe in her best interests. This, I would suggest would be the most productive target for your energies. If all her care is satisfactory and you are seeking a remedy for a technical error in her paperwork then I'd suggest proceeding with caution. If you want the facts about what was going on; an aoplogy etc. then an enquiry/complaint possibly with the support of Trust PALS may be more effective.
IANAL but your as your mum would be the litigant, is likely that it would be the official solicitor which pick up her case adding another layer of complexity.
Your advice is correct. This is generally seen as the territory of Human Rights law as MCA/DoL is an legislative solution for a ECHR case. There are some amazing talented solicitors and barristers in this area but since they are colleagues, co authors and friends I wouldn't want to give a personal recommendation. If you google legal cases involving Deprivation of Liberty it will lead you to the small number firms which specialise in this.
My FIL was sectioned under the MHA arising from an 'incident' whilst suffering from Dementia. The upshot was he ended up in a care home and because he was sectioned the 'state' is required to pay all his care home costs AND we had latitude to select the appropriate care home for him instead of the Council selecting the cheapest option.
Distressing as it might be that you end up in care following being sectioned under the MHA it was wholly, in our case, the right decision. It took the MIL some accepting, feeling guilty etc., but trying to care for someone who has needs 24/7 is not an easy task and would have made her ill in the process.
The FIL's 'episode' merely sped up the inevitable and despite going through the financial assessment process which was above the threshold all costs were met by Social Services. MIL decided to make a small (£20) monthly voluntary contribution.
As the above poster has intimated whilst this is personal to you and can be hard to detach one's emotions I would find it hard to accept that the 'state' would hold someone in unlawful detention in these cirucmstances. You could seek a second opinion to assess your mother as to her capacity and needs with maybe you offering a suitable care package at home rather than a care home. If indeed that is possible?
Distressing as it might be that you end up in care following being sectioned under the MHA it was wholly, in our case, the right decision. It took the MIL some accepting, feeling guilty etc., but trying to care for someone who has needs 24/7 is not an easy task and would have made her ill in the process.
The FIL's 'episode' merely sped up the inevitable and despite going through the financial assessment process which was above the threshold all costs were met by Social Services. MIL decided to make a small (£20) monthly voluntary contribution.
As the above poster has intimated whilst this is personal to you and can be hard to detach one's emotions I would find it hard to accept that the 'state' would hold someone in unlawful detention in these cirucmstances. You could seek a second opinion to assess your mother as to her capacity and needs with maybe you offering a suitable care package at home rather than a care home. If indeed that is possible?
Armitage.Shanks said:
My FIL was sectioned under the MHA arising from an 'incident' whilst suffering from Dementia. The upshot was he ended up in a care home and because he was sectioned the 'state' is required to pay all his care home costs AND we had latitude to select the appropriate care home for him instead of the Council selecting the cheapest option.
That's a really important observation and something I overlooked in addressing the narrow question of whether to pursue a remedy for unlawful detention.OP if your Mum had been eligible for s.3 MHA at the end of s.2 then she would be eligible for s.117 aftercare. The idea of s.117 being that discharged patients with mental disorder should have their needs taken care of by the state. I'm sure the original legislative intent was that discharged patients with, typically, schizophrenia and bipolar who might have substantial, housing, rehab and support needs would get what they need to keep them well and prevent future admission.
Before 1983, when the law was being drafted, dementia patients were much smaller in number and mostly stayed in hospital until they died so although the provision wasn't drafted with dementia in mind, nevertheless it still applies to dementia patients detained under s.3.
Whether this is worth investigating depends on the source of funding for your mum's care. If she is self funding then a challenge could see these care costs reimbursed and future care costs covered by the state.
A challenge would likely involve considerable investment in legal advice and commissioning reports from expert witnesses in social work and psychiatry. Only your circumstances and you and your family can decide whether this is worth pursuing.
Be assured that there is no grand conspiracy to keep patients off state provision for their dementia aftercare. From the hospital point of view it greatly assists discharge because families of otherwise self funding patients are generally more proactive finding a care home when their inheritance isn't threatened and from the social services point of view the funding for s.117 aftercare comes from a separate stream so it's a 'win' for them too.
Hi
Thank you for the replies and information.
I’m having to reply on my phone so it’s a bit difficult to reply to all the info you have given now but I will reply later.
There is a backstory to this where she attempted suicide previously and was held under a sect 2 for 28 days and then released.
The issue that we are having is that after she was detained under section 2 the hospital put a dols in place even though she was vocally refusing as she was calling the police to get her out, but the form they supplied us said she complied with it and there wasn’t an assessment completed to indicate her mental competency.
Also the dols (as far as I can find out) is only valid for 7 days extended to 14 which expired and she was there for a further 3months under duress and suicidal threats.
The way the situation has played out we/she is now having to self fund her care home fees. Looking at the info supplied she should have been held under sect 3.
I’m still having no luck with legal representation and the mental health provider has told me I don’t have the authority to obtain the info I’m requesting.
I will provide further information when I can get back on a computer.
Thanks again for the help.
Thank you for the replies and information.
I’m having to reply on my phone so it’s a bit difficult to reply to all the info you have given now but I will reply later.
There is a backstory to this where she attempted suicide previously and was held under a sect 2 for 28 days and then released.
The issue that we are having is that after she was detained under section 2 the hospital put a dols in place even though she was vocally refusing as she was calling the police to get her out, but the form they supplied us said she complied with it and there wasn’t an assessment completed to indicate her mental competency.
Also the dols (as far as I can find out) is only valid for 7 days extended to 14 which expired and she was there for a further 3months under duress and suicidal threats.
The way the situation has played out we/she is now having to self fund her care home fees. Looking at the info supplied she should have been held under sect 3.
I’m still having no luck with legal representation and the mental health provider has told me I don’t have the authority to obtain the info I’m requesting.
I will provide further information when I can get back on a computer.
Thanks again for the help.
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