Care Homes Of The Future – Rethinking How We Support Residents
The Law Of… Rethinking How Care Homes Operate
In 2014, the Supreme Court made a landmark decision that revolutionised our interpretation of the meaning of being deprived of one’s liberty.
Aimee Brackfield, Paralegal in Education Law and Community Care, takes a look at the effects of someone being deprived of their liberty, and how some care homes are using innovative ways of promoting the well-being of residents.
Defining Deprivation Of Liberty
In P v Cheshire West & Chester Council & another; P & Q v Surrey County Council  UKSC 19, Lady Hale reminded us that what would constitute a deprivation of liberty for a person with capacity is no different to that for a person lacking capacity.
Deprivation of liberty was defined as when someone is subject to continuous supervision and control and lacks the freedom to leave the accommodation being provided by the state. Questions of capacity to make decisions in this regard, what is in the resident’s best interests, and whether the resident’s living arrangements are comfortable and enjoyable are secondary to the question of liberty.
This led Lady Hale to conclude that "a gilded cage is still a cage", meaning that someone may be living somewhere that is very nice and provides favourable care, but if they are prevented from leaving this still amounts to being deprived of their liberty. When someone is deprived of their liberty, they should have the benefit of safeguards in place to ensure this is the least restrictive alternative for them.
This decision caused concern for many local authorities as they were worried that this would require them to undertake significantly more work under the Deprivation of Liberty Safeguards (DoLS). The subsequent rise in DoLS applications gives rise to a larger number of rights of appeal against this decision, which leads to a higher number of challenges being brought to the Court of Protection.
Challenging Deprivation Of Liberty Safeguards
The question of whether an application should be made to the court to challenge a DoLS has proved to be difficult, particularly for advocates and family members who aren't in the legal profession.
Where a resident lacks capacity to express whether they wish a challenge to be brought, or where they are inconsistent in their expression of their objection to being deprived of their liberty, the more recent case of Re RD & Others  EWCOP 49 provides useful guidance to Relevant Persons’ Representatives (RPRs) and Independent Mental Capacity Advocates (IMCAs) on when an appeal should be brought to the Court of Protection.
As explained in Re RD, the RPR or IMCA firstly needs to consider whether the resident has capacity to decide whether to bring a challenge or not. If not, they should then move on to consider whether the resident has expressed a wish to, or their behaviour indicates that they would want to, challenge their deprivation of liberty. The RPR or IMCA can also consider whether the resident would express a view objecting to this placement if they had capacity.
If none of these situations apply, the RPR or IMCA can still consider whether it would be in the best interests of the resident to challenge their deprivation of liberty through an appeal to the court.
What Can We Learn From Recent Cases?
These two important cases show evidence of the protective attitudes of the judiciary and legislature towards a person’s freedom and liberty, regardless of their disability or lack of capacity. These cases give liberty and freedom the due respect that you would expect to see in a civilised society.
The knock-on effect of these cases does, however, give rise to a legitimate concern that the number of appeals and challenges being brought to court is economically unsustainable.
Applications under s.21A Mental Capacity Act 2005 are non-means tested for the purposes of public funding, meaning that anyone, irrespective of their savings or income, is entitled to legal aid. Litigation can be expensive, starting with a £400 application fee and ending with a £500 hearing fee.
Questions therefore need to be asked (and answered) in relation to how to avoid the increasing number of challenges against deprivation of liberty authorisations being brought whilst ensuring that this is not done at the expense of the liberty and freedoms of society’s most vulnerable people.
Encouraging Interaction And Creativity In Care Homes
A care home in south London, Nightingale House, may have the answer to allowing residents to feel comfortable and free.
The care home has joined forces with the Apples and Honey Nightingale nursery, and residents and nursery children are cared for under the same roof. Residents are encouraged to join in activities with the children, including exercising, reading, cooking and eating meals together.
According to the Guardian, not only has this had a positive effect on residents, it's also a great way of preventing social isolation. The knock-on effects on residents’ health could also result in fewer hospital admissions. It's possible that this initiative could even lead to less spending on health and legal intervention.
Are Other Care Homes Taking Note?
The idea of alleviating loneliness and isolation by mixing generations has also been explored in care homes in Holland. University students are provided with free accommodation in care homes in exchange for volunteering for 30 hours a week, where they will spend time with care home residents, teaching them computer skills, reading with them, and just generally spending time together.
Again, the desired effect is to provide the residents with company and engaging activities, resulting in happier residents who do not resent being deprived of their liberty in the traditionally stigmatised lonely setting of a care home. The initiative has been working well, with staff at the care home reporting decreasing feelings of unhappiness amongst the residents.
Another care home run by WCS Care has decided to make hospitality the focus of its care homes, instead of clinical care. Staff at the home do not wear uniforms, and residents are encouraged to be as independent as possible in meal preparation and laundry, which they can do with the support of staff. Health is monitored by residents attending appointments with their GP, complete with a waiting room, and residents are provided with a spa and hairdresser salon as well as a cycle track for exercise.
The idea is to replicate a community as much as possible and to remove the clinical feel traditionally associated with care homes. It also has the goal of encouraging residents to socialise and go about their daily life, promoting independence and providing stimulating activities rather than treating residents like patients.
"These are just a few examples of the innovative ways in which care homes are trying to promote the wellbeing and happiness of residents, as well as improving the quality of life in a care home setting."
"Changing attitudes towards care homes and trying to ensure that residents are stimulated and treated with respect and dignity could make all the difference in alleviating the strain the courts are feeling in dealing with the high number of deprivation of liberty appeals being brought. Whilst these initiatives may be costly, the costs avoided further down the line in legal fees, court time, and NHS and social care spending may well tip the balance to provide sufficient justification."
"Moreover, rather than a reactionary system reliant on challenges being brought to court, these types of initiatives promote a system where care homes are transformed into desirable living spaces that people would not want to object living in and/or would be more likely to be accepted as the least restrictive option available for that individual. It may well be that initiatives like these could allow residents to feel more independent and engaged in everyday life, thus reducing the need for legal intervention."
"If you need some advice about DoLS or legal assistance, our Court of Protection team will be more than happy to help."