County council to pay record damages for unlawful deprivation of liberty
Essex County Council has agreed to pay £60,000 in damages to settle a legal action brought on behalf of a 91-year-old man who was held unlawfully in a care home for 13 months.
The man’s lawyers, Irwin Mitchell, said they believed the amount was the highest sum awarded in an unlawful deprivation of liberty case before the Court of Protection.
The background to the case of Essex County Council v RF & Ors (Deprivation of Liberty and damage) [2015] EWCOP 1 was that the 91 year old, CP, had been living at his home for more than 50 years. He is a retired civil servant who served in the RAF during World War II.
On 2 May 2013 Essex decided to move him to a care home following a safeguarding alert. Friends had been concerned at his finances and vulnerability to exploitation.
The council, however, had no authorisation to remove him and place him in a locked dementia unit. It alleged that CP left his home voluntarily.
An urgent authorisation was not put in place until 27 June 2013 and a standard authorisation not until 4 July 2013, two months after his removal from his home.
According to District Judge Mort, it was by no means clear that CP lacked capacity at the time.
A number of assessments of CP were subsequently carried out:
- A capacity assessment undertaken by an agency employee on 14 August 2013 concluded that CP did have capacity to make a decision regarding his accommodation;
- A further capacity assessment undertaken two days later (16 August) by the case responsible social worker (SW2) concluded that CP did not have capacity to make decisions regarding his residence;
- An assessment undertaken by an independent best interests assessor on 3 September 2013 concluded that CP had capacity to determine his residence and should be allowed home;
- Assessments by the social worker on 26 November 2013 and 17 June 2014 concluded on both occasions that P lacked capacity in relation to residence.
The standard authorisation expired on 25 October 2013 but was not renewed. This rendered CP’s detention unlawful, according to the judge.
No further standard authorisation was put in place until 8 July 2014 and this had only occurred at the suggestion of the Official Solicitor.
Throughout this time CP had expressed a consistent wish to return to his home.
“Yet despite the assessments concluding that CP did have capacity to make decisions regarding his residence, and the recommendations that it was in his best interests to return home, ECC [Essex County Council] did nothing to enable him to do so,” District Judge Mort said. “The result is that P was detained against his wishes for a period of 17 months.”
The matter came before the Court of Protection when one of CP’s friends objected to Essex’s application to become his financial deputy. A challenge to the lawfulness of the placement at the care home was also made.
The Official Solicitor was appointed CP’s litigation friend and Irwin Mitchell was instructed to act for him.
CP’s health declined during the course of the proceedings and it was determined that he now lacked capacity to make decisions about where he should live. A decision therefore had to be taken by the CoP in his best interests.
Essex is understood to have initially resisted CP’s return home. However the local authority eventually conceded and agreed before the final hearing on 1 October to fund a 24-hour package of care to enable him to do so.
On 5 November District Judge Mort made declarations that P lacked capacity to make decisions in relation to his residence and care arrangements, but retained capacity to make decisions in relation to contact with others.
The judge made a costs order that the council should pay CP’s costs to be subject to detailed assessment if not agreed. These costs are likely to exceed £50,000 and may even exceed £64,000.
Essex and CP’s legal team reached a compromise agreement in relation to P’s prospective claim for damages for breach of Article 5 (right to liberty and security) and Article 8 (right to respect for private and family life).
The settlement included reimbursement for any money spent on care home fees as well as the £60,000 in damages.
The approval of the court was required for this agreement to ensure it provided sufficient recompense to CP for the wrong done to him.
District Judge Mort said he had been greatly troubled by the manner of P’s removal from his home and placement in the locked dementia unit.
“There is no evidence that consideration was given to the less restrictive option of supporting him at home in accordance with his wish to remain there,” he said.
“Indeed, the independent best interests assessor comments in his report dated 7/7/14 'the least restrictive options were never tested' and further 'He (CP) was never given the opportunity and support to remain in his own home this being the least restrictive option'.”
The judge said it appeared that one of the triggers for CP's removal seemed to have been concern about the risk to him from financial abuse.
“If that is correct I fail to understand why CP's removal from his home of 50 years was considered to be a reasonable and proportionate solution to the problem or why his removal and detention was thought to be in his best interests,” he said.
“Action against the perpetrator(s) would have been preferable to the removal of the victim. The problem could have been addressed by the less restrictive and simple option of appointing a deputy to manage his property and affairs. However ECC would say that other factors influenced their decision to remove P from his home.”
The council did not dispute that CP was locked in at the care home and not free to leave; was under continuous supervision and control and that he consistently expressed a wish to leave and return home.
“The arrangements at CH amounted to a deprivation of P's liberty,” the judge said. He added that there had been a procedural breach of CP's Article 5 and 8 rights for 13 months of his 17-month detention.
“It is at least arguable that the whole of the 17 month period amounted to an unlawful deprivation of P's liberty,” District Judge Mort said.
He identified a number of failures on the part of the council, namely:
- To heed the presumption in favour of his capacity ;
- To adopt the course of action which was less restrictive of P's rights and freedom of action;
- To have regard the independent evidence of P's capacity by either ignoring it or immediately countermanding it ;
- To take seriously or act upon his consistently expressed wish to return home;
- To appoint an IMCA for him ;
- To refer the matter to the court.
District Judge Mort concluded that the protection for the individual enshrined in the Mental Capacity Act and the Codes of Practice had been ignored by the council.
“The conduct of ECC has been totally inadequate and their failings significant,” he said, adding that it was hard to imagine a more depressing and inexcusable state of affairs.
“A defenceless 91 year old gentleman in the final years of his life was removed from his home of 50 years and detained in a locked dementia unit against his wishes. Had it not been for the alarm raised by his friend RF he may have been condemned to remain there for the remainder of his days.”
The judge also sharply criticised the council’s failure to recognise the weakness of its own case and the strength of the case against it. Its conduct had been “reprehensible”.
He noted that the case involved a substantive breach of P’s rights. Taking previous cases into account (London Borough of Hillingdon v Neary and The Local Authority and Mrs D), he noted that the level of damages for the unlawful deprivation of an incapacitated person’s liberty was between £3,000 and £4,000 a month.
District Judge Mort said CP had been unlawfully deprived of his liberty for a minimum of 13 months (which Essex conceded) and arguably 17 months.
He decided that the award that he had been asked to approve – which placed the level of damages at between £3500 and £4600 per month – was a fair and reasonable award.
There were also other elements of the settlement agreement that would provide CP with further significant compensation and mark the seriousness of the case.
Caroline Barrett, a solicitor at Irwin Mitchell representing CP, said: “The local authority failed to meet its duties towards CP by failing to correctly authorise his deprivation of liberty in the care home or to properly consider the potential alternatives before he was moved, such as supporting him in his own home.
“Furthermore, when it became apparent that CP had capacity to make his own decisions, or that it was not in CP’s best interests to be in the care home, the local authority should have allowed CP to return home, or should have referred the matter to the Court of Protection. It is very concerning that in this case CP was denied the opportunity to return home for a period approaching a year and a half.”
She added: “Although this case was complex due to CP’s changing health needs, we are very pleased that the local authority has now agreed to fund a comprehensive package of care for CP which has allowed him to return home. On a recent visit to see CP, he told me he was thrilled to be back in his own place and to have his freedom back.”
Barrett suggested that the case highlighted why it was important for local authorities to comply with the DoLS. “There has been a great deal of commentary about the impact that the recent Supreme Court case of Cheshire West is having on local authorities; however this case demonstrates how crucial it is for the safeguards to be properly complied with.”
Essex County Council has been approached for comment.