Clive* is a 71 year old male with an acquired brain injury as well as mental health needs, which affect his short term memory and cause him to become disorientated.

Clive is married and both he and his wife lived together in supported living accommodation until Clive’s deterioration in his mental health meant that he needed to be sectioned under the Mental Health Act. In 2011, Clive was discharged from hospital on a Guardianship Order to a residential setting where he was required to reside for the purpose of care and treatment.

In 2014, it was recognised that Clive was being deprived of his liberty as a result of the restrictions that were imposed upon him, as well as the level of supervision that he was subjected to. Furthermore it was felt that Clive lacked the capacity to decide where he should reside for the purpose of care and treatment and therefore a Deprivation of Liberty Safeguards (DoLS) was put in place by the Local Authority.

How we helped

Our advocacy service received a referral for an Independent Mental Health Advocate (IMHA) to support Clive with his Guardianship Order. A second referral was then received for a paid representative (RPR) for Clive’s DoLS as it was felt that there was nobody appropriate to uphold Clive’s right’s in this respect. The same Independent Advocate was allocated to support Clive in both of these roles in line with ensuring continuity of advocate under the Care Act.

It was clear to the Independent Advocate that Clive was objecting to his placement and the restrictions in place. Clive expressed a desire to go back to living with his wife at the supported living property which she still resided in. On a regular basis Clive was attempting to abscond from the care home and became agitated and aggressive with the staff.

Under the DoLS, Clive was entitled to free legal aid to assist him in challenging the authorisation in the Court of Protection. The Independent Advocate sought the advice of a solicitor on Clive’s behalf and began initiating the process of an application to Court. In the meantime, the Independent Advocate requested a Mental Health Tribunal on Clive’s behalf as he was objecting to his place of residence and was entitled to appeal his Guardianship.

The application to the Court of Protection was rejected, as it was identified that whilst the Guardianship Order remained in place a judge would not be able to make a decision about Clive’s residence.

The tribunal was held and it was agreed that there was no requirement for the Guardianship as Clive’s DoLS authorisation meant that the staff at his placement could stop Clive from leaving the premises. The Independent Advocate and Clive’s solicitor put forward that discharging Clive from the guardianship would be the least restrictive option. The Guardianship was therefore rescinded and Clive was then able to challenge his DoLS authorisation.

Clive’s Independent Advocate then proceeded with the application to the Court of Protection. The Independent Advocate presented the court with evidence to suggest that Clive has been objecting to the placement and restrictions for a prolonged period of time and that Clive’s expressed wish was to return to his previous address to live with his wife.

The Independent Advocate also requested that a secondary Mental Capacity Assessment was completed by an independent assessor, as there were concerns around Clive actually having capacity. Clive had informed the Independent Advocate that he understood why he had been admitted to the care home, identified what support he required off staff and highlighted advantages and disadvantages of staying in the care home, as opposed to going home to live with his wife.

The capacity assessment which was completed found that Clive had capacity to decide where he would reside for the purposes of care and treatment, as a result the DoLS authorisation was terminated and Clive was able to live his life free from being deprived of his liberty.

As it stands, Clive has decided that he would prefer to continue to live in the care home, as he has access to a higher level of support than he would get in the community and has built strong relationships with the staff. His wife continues to visit him and they regularly go out in the community together for walks, meals out, shopping and to the cinema.

As a result of the Independent Advocate’s involvement Clive no longer requires the support of advocacy, as the advocate was able to ensure that Clive’s voice was heard, and more importantly, action was taken to demonstrate that he was being listened to.

*Names have been changed to protect the identity of the people we support