A judge has castigated a council for “reprehensible conduct” in unlawfully depriving a 90-year-old man of his liberty for at least 13 months as a result of multiple Mental Capacity Act practice failings.
In May 2013, Essex Council moved the man, who has dementia and other health problems, into a care home following a safeguarding alert in relation to his perceived vulnerability to financial abuse.
However, this was without lawful authorisation and contrary to his wishes and the man, who is now 91 and was known as CP during the proceedings, remained at the home until October 2014. For only four months of this time, when standard authorisations to deprive him of his liberty were in place and there was no dispute over his capacity to decide residence, was his detention lawful.
District Judge Mort, in the Court of Protection, said the man had had his rights to liberty (article 5) and family and private life (article 8), under the European Court of Human Rights, breached during the 13 months.
He approved a compromise agreement in which the council would pay CP £60,000 in compensation and costs expected to top £50,000 and waive care home fees payable by CP of £23,000 to £25,000.
The judgement revealed a catalogue of practice failings in the way council staff supported CP,as well as breaches of law:
- In the initial assessment of CP’s capacity to make decisions about care, residence and finances, on 1 May 2013, the social worker’s assessment of CP’s ability to retain, use and weigh information was unclear.
- CP was removed from his home and placed in a locked dementia unit without authorisation under the Deprivation of Liberty Safeguards, on 2 May 2013. An urgent authorisation was not put in place until 27 June 2013 and standard authorisation was not in place until 4 July 2013, two months after the move.
- There was no evidence that council staff considered the less restrictive option of supporting him in his own home, contrary to the fifth principle of the Mental Capacity Act.
- A capacity assessment on 14 August 2013 that found CP had capacity to decide to return home was overridden two days later by an assessment by his case social worker (SW2) which concluded the opposite. Despite this difference of view, no attempt was made to review CP’s case, appoint an independent mental capacity advocate for him or apply to the Court of Protection to adjudicate.
- An assessment by an independent best interests assessor, in September 2013, that CP had capacity to decide to return home and should be enabled to do so was ignored by the council.
- The standard Dols authorisation expired on 25 October 2013 but was not renewed, rendering his deprivation unlawful. It was not renewed until 8 July 2014 – eight and a half months later – and then only at the suggestion of the Official Solicitor, acting as CP’s litigation friend. At this point, an independent BIA recommended that he should return home.
- Throughout his time at the care home, CP expressed a consistent wish to return home, but despite assessments that he possessed capacity to make this decision, and recommendations that it was in his best interests, the council did nothing to enable him to do so. As a result he was detained against his wishes for 17 months.
- The council had an obligation to apply to the Court of Protection to rule on CP’s best interests during his detention but did not do so; instead the proceedings were triggered in March 2014 by concerns raised by CP’s friend, RF, about the council’s application to be his financial deputy.
Giving judgement, District Judge Mort said:
[The council] failed to recognise the weakness of their won case and the strength of the case against them. They appeared unprepared to countenance any view contrary to their own. They maintained their resolute opposition to P returning to his home until the last possible moment. In my judgement the conduct of [the council] has been reprehensible.”
In response to the judgement, the council said it had made a significant investment in staff training to address the issues identified.
Dick Madden, cabinet member for adults and children, said: “The court has been critical of ECC practice and the process followed, we accept that in this case we failed to follow the legal requirements. The court acknowledged that facts within this case continue to be in dispute and that this was a very complex case. Throughout the process we always had the care and wellbeing of the individual at the heart of our decision making, something that was noted by the court.
“We have ensured that Adult Social Care have implemented a variety of measures to reduce the likelihood of this happening again, this includes an independent review of our practice and significant investment in staff training.”
On the day before the expected final hearing of the case, on 1 October 2014, the council reversed its position and said it would be in CP’s best interests to return home. This was on the basis of an independent nurse specialist’s assessment in September of that year, which found that “considerable weight” should be placed on CP’s desire to return home and there were no insurmountable barriers to his return or the management of his needs at home. By then it was also agreed by all parties that CP, whose health had deteriorated, lacked capacity to make decisions about his residence or care.
CP then returned home and, at a subsequent hearing on 5 November 2014, it was reported that he was happy and had a comprehensive system of care in place.
“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,” said Caroline Barrett, a solicitor representing CP at the firm Irwin Mitchell, following the judgement.
She added: “This case highlights why it is important for local authorities to comply with the deprivation of liberty safeguards, which are in place to safeguard vulnerable people from exactly this sort of situation. 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.”