Families torn asunder
.
.
.
Administrator
Can care homes lawfully ban visitors or evict residents because of the actions of visiting family members? Shadia Ousta Doerfel outlines the position.
Restricting contact with, or evicting, a vulnerable adult may amount to a safeguarding issue per se and safeguarding should always be a primary consideration underpinning a local authority’s approach.
With recent media coverage shining a light on care homes banning family members from seeing their loved ones or even seeking to evict residents because of issues with those family members, the law offers something old and something new to help. Does the often-overlooked rescue provision in Care Act 2014 (CA) s73 offer a knockout blow? Given the rise in such cases, it is worth reminding ourselves of how existing legal mechanisms can assist both local authorities and families, as well as giving a heads-up to care homes about their rights and responsibilities regarding residents’ rights, helping to avoid costly litigation.
Letting go of an elderly or vulnerable family member to a residential placement is often a wrenching decision and a last resort. The hope should be, and the care plan should ensure, that residential care enables the adult to safely live out a better quality of life in the best possible environment.
Families tend to react differently to the emotional and practical impact of allowing their loved one to be so placed. Many are supportive and accepting, but some feel they are protecting the resident by over-scrutinising care arrangements or raising numerous complaints, whether or not they are ultimately justified. Such complaints should be duly investigated, as varying experiences of care homes, their systems and their quality of care entitle families to raise legitimate concerns. However, sometimes a risk may be posed by the family member’s or complainant’s own behaviour. How the care home deals with these situations (and its conflict management in general) sets the scene for whether or not it may be successfully challenged in the event that it wishes to impose further measures on the resident as a result of third-party behaviour.
Recent times have seen an increasing trend of care homes banning relatives from visiting residents, and even evicting residents themselves, purely because the relationship between family members and the care home has become strained or untenable, or, in some cases, merely because a family member has raised a concern.
In such a situation, the starting point is to determine whether or not, for the purpose of the Mental Capacity Act 2005 (MCA), the resident lacks mental capacity to make two essential decisions: those regarding residence and contact. The answer will clarify which is the appropriate legal pathway to take for the care home, or indeed the family, seeking redress or resolution.
Care homes often rely on clauses in their contracts (which could be either with residents or the local authority that commissions or contributes towards the placement) that refer to the right to evict or take restrictive steps on the grounds of bad behaviour. A care home may rely on its contract with the local authority and take steps to enlist its help to secure an alternative placement, but the authority may have concerns or reservations about doing so.
There are three main legal points to consider that apply whether the resident has capacity or not, because restricting contact with, or evicting, a vulnerable adult may amount to a safeguarding issue per se and safeguarding should always be a primary consideration underpinning a local authority’s approach.
1. The contractual landscape
There will be relatively few occasions where a care home can successfully rely on a contractual ‘behaviour’ or other clause to lawfully evict a resident in its care. Previous case law has suggested that where the assessed need subsists, a provider should take reasonable steps to manage the resident’s behaviour while the duty to meet that need remains.
The real crux lies where a care home relies on a contractual term to give notice or enforce an eviction on the grounds of behaviour: before considering whether or not appropriate notice was given, sight of the contract is required in order to establish whether or not the clause even applies to the resident’s circumstances. Often, such clauses refer to the care home’s entitlement to terminate a placement on the grounds of the resident’s behaviour; however, in cases where the behaviour complained of is attributable to the family member (or the family’s relationship with the care home), this contractual provision clearly cannot apply and is likely to fail if relied on.
Depending on the contract’s wording, whether or not it applies, and notwithstanding the care home’s insistence on relying on it, the next question must be whether or not the resident has relevant capacity. Whatever the care home’s assertions or notices given, residence and/or contact decisions concerning a resident who lacks capacity to make them can only lawfully be made pursuant to the MCA and, in many cases, by the Court of Protection (CoP); relying on contractual clauses has no place.
2. The Mental Capacity Act 2005 and the best interests process
The incapacitous resident
Under the MCA, capacity is decision-specific. The two main decisions relevant to a care home banning family contact or evicting a resident will be whether the resident lacks capacity to make decisions about: where to live; and/or contact with their family. If the legal presumption of capacity is overturned by way of a mental capacity assessment that complies with chapters 2, 3 and 4 of the MCA Code of Practice, decisions about that person’s residence and/or contact can only lawfully be taken pursuant to the best interests decision-making process. This comprises:
1a best interests assessment (BIA) – consulting all relevant persons and professionals on the full range of options from the least to the most restrictive and then applying the balance sheet test (pros and cons) to each potential option before concluding which one would be in the resident’s best interests, having considered their wishes and feelings; followed by
2a subsequent best interests meeting to discuss the BIA.
If there is still no resolution at the end of this process, decisions about residence and/or contact should be decided in the CoP, whose sole jurisdiction exists on the basis that a person lacks or may lack capacity to make a relevant decision (complying with the court’s recent Practice Direction – Case Management Pilot (June 2016, effective from 1 September 2016)). The court can make orders regarding residence, contact or even the lawfulness of an act. Even if a care home has issued a notice of eviction, whether or not it applies, is valid or is already on the way to being effected, this may be preventable by lodging an urgent application to the CoP for an interim order. Local authorities should view such situations through the MCA and safeguarding spectra, and not just seek to facilitate the care home’s wishes.
A significant caveat is that if a resident lacks residence capacity, they should in any event be subject to a standard authorisation for deprivation of their liberty (DoL) under MCA Sch A1, which may well continue during the period within which eviction may be pursued. This standard authorisation will have assessed that it must be in the resident’s best interests to be placed where they are and thus be lawfully deprived of their liberty, so issues about where they should live can only lawfully be decided by the CoP unless the resident regains residence capacity and/or the DoL is varied or terminated. The care home, as the managing authority of the DoL, should consult the supervisory body authorising the DoL in such circumstances so a proper lawful review can be undertaken.
Where the matter does advance to the CoP, the court may be invited to consider including a protocol of expectations appended as a schedule to any final orders, whose terms may be agreed between the parties but which will ultimately govern the relationship between the care home and the family so a clear pathway is formulated as to how they should communicate in future, any breach of which may require the parties to return to court.
The role of mediation (even for capacitous residents, provided agreement can be reached as to who pays for it) should be considered and undertaken where possible, which may result in an equally binding agreement signed by the parties, as long as it is appropriately weighed within the context of considerations required to be taken into account for those who lack relevant capacity.
The capacitous resident
Where a resident has relevant capacity, seeking to evict them because of their family’s behaviour or the care home’s relationship with that family may be approached in one of two ways:
1by the care home taking steps to enforce eviction via the county court on the basis of the contractual term on which it relies and then defending those proceedings; or
2by the family or resident themselves, where possible, initiating proceedings to seek an injunction against the care home to prevent eviction.
Such cases may be particularly bolstered by the use of CA s73 where it applies.
3. Care Act 2014 s73
Section 73 came into force on 1 April 2015 and changed the status of registered care providers in the UK to that of ‘exercising a function of a public nature’ (s73(2)) for the purposes of the Human Rights Act 1998 (HRA) when providing adults with personal care in their own homes or residential accommodation with personal or nursing care, such care having been arranged or funded by a public authority pursuant to its duties or powers. In exercising such ‘public function’ for the purpose of HRA s6(1), registered care providers are therefore under a duty to act in a way that is compatible with residents’ rights under the European Convention on Human Rights.
The downside is that s73 does not apply to self-funders, because the provision has to be in some way imputable to the state. Self-funders may then find themselves relying on whether or not the eviction or action to restrict contact is legally sound, or they may enter the CoP realm if they lack or have lost relevant capacity. There seems no particular bar to a self-funder seeking to invoke a human rights claim as part of their resistance to eviction or contact restrictions, but it would have to operate outside s73 and in accordance with what is legally possible.
That said, where a self-funder actually requests that the local authority meet their needs even if they have to pay for such care in full, this would trigger the local authority’s duty under CA s18 to meet those needs (see Care and support statutory guidance Annex A paras 41–42). It is difficult to see how a local authority could claim that s73 did not apply to a self-funder who could have arranged their own placement, but availed themselves of condition 2 under CA s18(3) by requesting that the authority arrange to meet their needs or meets their needs itself in accordance with the CA.
Whether or not a resident lacks relevant capacity, s73 greatly assists in terms of the care home being required to demonstrate how it arrived at the decision to evict (or restrict contact) and what, if any, consideration was given to the resident’s human rights when making its decision.
Conclusion
While care homes are entitled to operate and provide care in an environment that allows and enables them to do so safely, they are not entitled to effectively punish residents for the behaviour of family members or friends. Seeking to enforce what may appear to be a strict legal contractual right will often fly in the face of a number of legal realities including CA s73.

About the author(s)

Description: Shadia Ousta Doerfel
Shadia Ousta Doerfel is a solicitor advocate at Surrey County Council.