Since a Supreme Court judgment in 2014 lawyers have seen a dramatic increase in the number of applications made to the court to challenge authorisations for patients to be sectioned under s21A of the Mental Capacity Act 2005.
Now there is a growing fear that the current COVID-19 isolation rules could prevent challenges to local authority care decisions being made, under Deprivation of Liberty Safeguards (DoLS) legislation.
But Shane Maddocks, a Mental Health lawyer and authority on DoLS with North Wales and Shropshire law firm GHP Legal, says anyone concerned about the safety and treatment of a loved one in care should still seek legal advice as there may be sufficient grounds on paperwork alone to challenge decisions being made without their consent.
Mr Maddocks, who frequently works on cases within the Court of Protection, representing elderly people suffering from dementia or other mental health issues, says whilst visiting care homes is not possible at the moment it does not mean that challenges under s21A of the Mental Capacity Act 2005 should not be considered.
“If there is strong evidence in a patient’s Relevant Person’s Representative (RPR) report to highlight a problem”, he says, “legal advice should still be sought as there are measures that can still be taken without actually visiting the patient in the home where they are being cared for.
“Lawyers are still conducting interviews by telephone and in some instances by skype, even though physical visits cannot be made. So relatives and representatives of those who do not have the capacity to speak out for themselves should seek immediate legal advice if they are in any way concerned about the welfare of someone in care.