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Deprivation of Liberty in the news

A news story emerging over the past few days has been that of Ylenia Angeli and her daughter Leandra Ashton (a former Coronation Street actress) who ‘stole’ Ms Angeli’s mother, who is 97 and has a diagnosis of dementia, from the care home in which she was residing. Ms Angeli was arrested after the care home called the police, apparently because Ms Angeli physically removed her mother from the care home and refused to return her. Ms Ashton appears to have filmed much of the incident, with the video showing an elderly lady sat in the front of a car whilst Ms Angeli sits in the back of a police car, handcuffed. Ms Angeli’s mother was returned to the care home by the police, and she was de-arrested.

The headline and video are shocking and emotive, and it is easy to see how anyone in that situation, concerned about their family member, would do something similar. The family had not seen Ms Angeli’s grandmother in 9 months, because of the restrictions caused by the COVID-19 pandemic. Many care homes have been offering ‘window’ visits or other methods, but Ms Angeli and Ms Ashton say that Ms Angeli’s mother found window visits distressing and confusing, and the care home in this case were not flexible in what they could offer.

The news coverage, however, does not paint the entire picture. There is a statutory framework in place to protect people like Ms Angeli’s mother, who presumably lacks capacity and who is deprived of her liberty whilst living in that care home (as she is under continuous supervision and control, and not free to leave). Being forced to remain in the care home breaches this woman’s human rights, and in particular, Article 5; the right to liberty. As Lady Hale once said, “a gilded cage is still a cage”.

To make sure that it is appropriate, and in Ms Angeli’s mother’s “best interests” to remain where she is, the deprivation of liberty safeguards scheme exists (see our dedicated page here for more information). The local authority should have made various assessments of Ms Angeli’s mother to authorise her detention. If she was objecting to her detention in any way, by words or actions (a classic example being packing her bags and standing by the door, but there are lots of others), she would have the automatic right to challenge the decision to authorise her detention in the Court of Protection. This right exists regardless of her capacity, and non-means tested legal aid is available to do this. Separately, Ms Angeli and Ms Ashton could have made an application to the Court of Protection to demonstrate why it was not in Ms Angeli’s mother’s best interests to remain where she is.

The Court of Protection will take all individual factors into account when determining what is in someone’s best interests. For example, the fact that Ms Angeli is a trained nurse (and presumably could give her mother a good quality of care) would be a factor, as would the fact that she is being deprived of the opportunity to see her family at all due to COVID-19. The court would take all factors into account, taking a ‘balance sheet approach’ to make a final decision about where it would be best for Ms Angeli’s mother to live. It is worrying, however, that the news coverage of this distressing incident does not feature this legal avenue. From reading the article, you would assume that Ms Angeli had no choice other than to break the law to achieve what she thought was best for her mother. That is not the case. This incident must have been distressing for everyone involved; the police officers and care home staff, Ms Angeli and Ms Ashton, and of course Ms Angelis mother.

Moore & Tibbits can assist you and your family with every step of the DoLS process, and have a legal aid franchise to assist in this area if you are eligible. We can also assist with any COVID-19 specific queries you might have regarding how extra restrictions might affect your loved one. If you are concerned in any way about a loved one in care, please get in touch with a member of our dedicated team.

Click here to read the BBC article.

Ceri Mawson

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