In AJ v A Local Authority [2015] the Court of Protection outlines the burden and necessary steps to be taken by local authorities and professionals involved to ensure that the person's human right to liberty is maintained.
This case involved an elderly lady who was placed in a care home by her family ostensibly for respite, but with a view to a longer term placement, without a standard authorisation in place in advance.
The Court of Protection decided that the local authority had unlawfully deprived AJ of her liberty by placing her in a care home against her wishes, with no standard authorisation and no court authorisation of the deprivation of liberty.
One protection for the person deprived of their liberty is appointment of a representative (relevant person's representative). This case highlighted the need for the representative to be someone who would explore a court challenge of the deprivation of liberty. The local authority in the AJ case had wrongly appointed a family member they knew would not support the person deprived of her liberty to bring any challenge.
This means that more often than before the role of representative will not fall to family members, especially where there may be a conflict of interest with the family member considering the placement appropriate. The local authority needs to carefully consider selection of a representative, and must monitor and refer back to the best interest assessor if the representative does not appear to be taking any steps to challenge deprivation of liberty.
The guidelines have led to increasing numbers of challenges being brought by representatives in the Court of Protection.
The term 'respite' will no longer act as a shield to the local authority when the individual will not willingly go into care. Before such a placement is made, a DoLS (deprivation of liberty safeguards) assessment or application to the Court of Protection needs to have been made.