Safeguarding people with dementia who are moved to a care home without their consent?

[Samantha]

The government is consulting on the issue of people without capacity who are, in effect, informally detained. This could include many people with dementia in care homes or long stay hospitals - they do not have capacity to consent to being in the care home or hospital, but do not resist detention.
If the individual resisted detention it is likely that they would be 'sectioned' under the Mental Health Act and treated compulsorily. They would then be protected by the Act's safeguards; like a right to care plan and right to have 'detention' reviewed.
People who are 'informally detained' are not subject to the same safeguards as those being treated under the mental health act - they fall into the 'Bournewood gap'.

The government want to know how people who do not have capacity to consent, but have not resisted being 'detained', are protected.
They are particularly interested to know:

Should there be a 'nominated person' formally appointed to be consulted on behalf of the person with dementia? This could be a family member or friend.

Should there be a mechanism whereby a person's 'detention' in the care home or hospital is reviewed, as to whether it was still appropriate. What should trigger these reviews? What if there is a dispute between family members or with staff?

What arrangements should there be for carers, friends and relatives/advocates to object to admission/'detention' – what about if there are disagreements?

It would be good if there was a duty to review a person with dementia's treatment. How do you think these reviews should be carried out and who should be involved? Should it be between family and care home staff, or should an independent person be involved?

I would be very grateful for any views on these and any other thoughts relating to the safeguards that should be in place for people with dementia who do not have capacity to consent to treatment and admission to hospital or care home.

 

[Ruthie]

Sorry, I have only just read your post, and I am not in a position to give any answers to your questions, quite the reverse as it has raised a lot of questions in my mind that I hadn't considered previously.

My husband is in an NHS Dementia unit under a Section 3, but at a recent Care Plan Review the consultant suggested that as he was no longer trying to escape, the Section could perhaps be "taken off" at the next meeting. My husband's behaviour is still unpredictable and, from time to time, aggressive and violent according to the nurses, so my understanding is that if he needed additional sedatives and he wasn't under a Section, he would have to be given them without his consent (which surely would legally constitute an assault?).

Can I insist on the Section 3 remaining in place, as your posting worried me that he would no longer be entitled to a Care Plan and other safeguards without it? If it were to be suggested that he is moved to a Care Home, do I, or his next closest relative, (I have terminal cancer, so may not be around to fight these battles) have the right to refuse the move? This is not on the cards at the moment as he is still mobile and aggressive on occasions, but the consultant said that when he becomes bed-bound "and only needs routine care" there would be no reason to keep him in the hospital (except in my view the fact that he will get the best care there and knows the staff and they know him). I know that some patients have remained there until they died, despite being immobile, bed-ridden and non-aggressive.

I have looked at some local care homes and wouldn't put my dog in them, and if I am around I would be inclined to refuse my permission for him to be moved - what would happen then?

Worried

Ruthie

 

[Samantha]

Dear Ruthie

Thank you for your post. I think its best that I ask our legal and welfare office about your situation as she has a better understanding of these things than me. We'll get back to you as soon as possible.
Thanks
Samantha

 

[Samantha]

Safeguarding people

Dear Ruthie
I've spoken to Sara and she has the following advice

1. If someone was taken off a section and given sedatives, this would not be assault if they were agreeing to take them. If they said no and someone forced them, then this might be assault. Of course, how much this person would understand about what he was taking is debatable but if people with dementia were only given medication if they knew exactly what it was for, a high number of people would not be given medication obviously.

2. You cannot insist that your husband is kept on a section. He should have a care plan whether he is on section or not, because it is good practice, however, if he was on a section then there would be a legal duty for there to be a care plan.

3. If the multi-disciplinary team decide your husband needs to be moved then they will move him and relatives can object but they would have to have very good grounds. They would need to complain to the hospital then the Health Commission then the Ombudsman. He may be receving excellent care in the hospital but hospitals are not able to keep people with dementia who are technically bed blocking, regardless of families' preferences unfortunately.

Do give Sara a call if you would like to talk more about this. Her legal and welfare helpline is open from 2-4.30pm and is on 020 7306 0842
Best wishes
Samantha

 

[Ruthie]

Thank you Samantha, and please thank Sara for providing the answers to my questions. I will pass the infomation on to my sons, who will be responsible for my husband's welfare in the future.

Sorry I have taken this thread off-topic, but at least it will bring it to the top of the list and perhaps you will get some more constructive replies!

Thanks again.

Ruthie