Official Solicitor loses bid for costs over withdrawn deprivation of liberty test cases

The Official Solicitor has failed in a bid to recover costs in the Court Of Protection from a clinical commissioning group that withdrew test cases aimed at seeking clarification of the law concerning the deprivation of liberty of mentally capacitated adults.

The dispute over costs arose out of two cases where the Official Solicitor acted for litigants LB and SHC against NHS Dorset Clinical Commissioning Group (DCCG) concerning the operation of the Mental Capacity Act 2005.

Baker J ruled against the attempt to recover costs in his judgment in SHC NHS Dorset Clinical Commissioning Group v LB & Anor [2018] EWCOP 7.

DCCG in 2017 launched what were intended to be four test cases seeking clarification of the law concerning the deprivation of liberty of mentally capacitated adults.

All were eventually withdrawn, but only after the Official Solicitor had agreed to act for two respondents who had legal aid and incurred some costs.

The Official Solicitor applied to have these costs paid by DCCG, as it had abandoned the cases.

Each case involved mentally incapacitated adults living at home and being supported under care plans devised and administered by the DCCG, which wanted to test the circumstances in which such service users could be judged to have been deprived of liberty.

The issues concerned were whether, for the purposes of Article 5 of ECHR and s64(5) of the Mental Capacity Act 2005, someone was deprived of his/her liberty if not free to leave and subject to continuous supervision and control, but was in their own home under restrictions necessary and proportionate for providing care, and DCCG was responsible only because it provided NHS continuing care funding.

The judge said: “I do not consider this is an appropriate case for an order for costs against [DCCG because] I do not accept the suggestion that this was not a typical welfare case.

“The application concerned a series of welfare cases in which an important preliminary issue arose on a point of law.”

Baker J said it was widely recognised that the law concerning deprivation of liberty under the Mental Capacity Act was "in a state of some uncertainty” and the government had accepted most recommendations for change from a Law Commission review, including the replacement of the Deprivation of Liberty Safeguards.

It had been reasonable for DCCG, he said, to seek guidance from the courts on the issue of the impact of the "acid test" on cases involving incapacitated adults living at home, given the large number of individuals in those circumstances for whom it was responsible.

The judge said that, given the constraints under which all public bodies operate, the CCG had been “entirely justified” in keeping under review the question of whether to pursue the case.

“Indeed, it would have been remiss if it had not done so. The fact that the applicant decided to abort the proceedings was a reasonable decision. To use the words in rule 159(2)(b) again, it was reasonable for the applicant to decide not to contest the issue in the light of developments in the litigation….,” Mr Justice Baker said.

The judge said that although it was arguable that the difficulties in the individual cases could have been anticipated, he did not think that the applicant's failure to do so at an earlier stage could be described as litigation conduct of the sort to justify departing from the general rule.

He concluded: “In all the circumstances, I do not consider that its decision-making and overall conduct justifies a departure from the general rule as to costs.

“Accordingly, there will be no order as to costs in these proceedings, save for a detailed assessment of the respondents' publicly funded costs.”