Q&A - Authorities say we can't get our son out of care home where he is unhappy because he lacks capacity. Is this true?

Q: My 19 year old son suffers from cerebral palsy and has recently been moved to a Young Adult Care Home. I am told that he is subject to a “DOLS”.  I agreed to him being placed in the Care Home at the time but I don’t think he should be in the current care home anymore. He has told me that he is very unhappy there and I have raised this with the Local Authority but have been told that there is nothing we can do because he lacks capacity to make decisions. Is this true?

A.  Absolutely not. Being subject to a DOLS means that your son is currently deprived of his liberty. In order for a care home to lawfully deprive someone of their liberty, they need to obtain the authorisation of their Local Authority.  This makes the person subject to a Deprivation of Liberty Safeguard Standard Authorisation (or DOLS).

If your son is challenging being at his current placement, and the court considers he is not able to weigh up the reasons why others think he should be there, you can bring Court Proceedings on his behalf. This is called a S21A challenge and would be dealt with in the Court of Protection. The Court will make the decision as to what is in your son’s best interests and will take various factors into account in doing so.

As cases related to DOLS involve human rights issues, legal aid is often available.  If it is a challenge brought by your son to his DOLS, usually there would be no charge to him. I would suggest that you instruct one of the very few firms who specialise in this area of law.  The Law Society has established a panel of specialist lawyers called the Mental Capacity (Welfare) Accreditation Scheme.

(Published January 2018)