Q: My daughter is 22 and on the autistic spectrum. Last summer my wife and I placed her in a Respite Home for two weeks so that we could have a holiday, but since we got back they have not allowed her to return home. She is desperately unhappy and indicates often that she wants to come home to her family. To make matters worse our visiting has been restricted by the home due, they say, to her behaviour and distress following visits. We are totally distraught. What can we do?
A: If your daughter is being prevented from returning home, or if your visits to her are being significantly restricted, then she is being deprived of her liberty. The care home manager should alert the local authority who should then, if it is necessary, authorise her continuing detention by what is known as a DoLS or Deprivation of Liberty Safeguard. If this does not happen you can, with the proper advice and assistance, compel the local authority either to issue a DoLS or to cease to restrict her liberty i.e. allow her to see you and also allow her to return home.
If a DoLS is issued and your daughter continues to be in the home and/or your visits continue to be restricted, you or she can apply to the Court of Protection to resist this. The fact that the local authority may talk about your daughter ‘lacking capacity’ should not prevent this. If the application is made on your daughter’s behalf, legal aid is normally available regardless of her (or your) financial circumstances.
DoLS is a difficult and complex area of the law which has been subject to change recently, and the problem is that few Solicitors have expertise in it or can access the necessary Legal Aid.