(Court of Protection, District Judge Mort, 7 January 2015)
Deprivation of liberty – Compensation – Award – Capacity – Compromise agreement
P, a 91-year-old man was deprived of his liberty having been removed from his home and detained unlawfully. There had been a substantive breach of P’s rights in his treatment by Essex County Council – their conduct had been totally inadequate and their failings significant. P needed to be adequately compensated, which was reached by way of a compromise agreement approved by the court. Facts
P, a 91-year-old gentleman who suffered from dementia, difficulty in mobilising and delirium was moved from his home into a care home in May 2013 by Essex County Council (ECC) following a safeguarding alert.
ECC became involved with P as his friends raised concerns regarding his finances, vulnerability to exploitation and self-care issues. A capacity assessment was carried out by a social worker with ECC which concluded that P lacked capacity to make decisions about care, residence and finances. There was no record of P’s wishes and feelings. On removal from his home P was reluctant to leave and very distressed. ECC had no authorisation to remove P from his home and place him in a locked dementia unit.
The proceedings arose from a challenge to the lawfulness of P’s removal brought by a close friend of P. P’s church community and friends felt it was in P’s best interest to return home with a package of care in place. P’s niece and nephews however, felt it was best for P to stay in the care home.
ECC alleged that P left his home voluntarily. A standard authorisation was not put in place until some 2 months after P’s removal from his home. The authorisation included restrictions (which were eventually lifted) on P’s attendance at Church and contact with his friends.
There were subsequent capacity assessments undertaken which contradicted each other. Initially it was concluded that P did have capacity to make a decision regarding his accommodation, however a further assessment 2 days later disagreed that P had capacity in respect of his residence. An independent assessor concluded P had capacity to determine his residence and should be allowed home. However, two more assessments both concluded P lacked capacity in relation to residence.
The standard authorisation had in the meantime expired and was not renewed thereby rendering P’s detention unlawful. Throughout the whole of the period of P’s placement he expressed a consistent wish to return to his home. P was detained against his wishes for a period of 17 months.
The day before the final hearing ECC notified the parties that they supported P’s return home.
An independent nurse specialist in palliative care was instructed to prepare a report in relation to P’s best interests concerning the arrangements for his residence and care. The report was clear that the manner of P’s admission to the care home and the discord between his family and friends had not had a positive impact on P. He had consistently expressed a wish to return home and considerable weight should have been placed upon that wish. There were no insurmountable barriers to P’s return home and the management of his needs once there.
P returned home and accepted the package of care provided. Although he had recovered from his episode of delirium he still lacked capacity in relation to residence and care.
ECC agreed to pay P’s costs which could exceed £64,000. A compromise agreement was reached in relation to P’s prospective claim for damages for breach of his Article 5 right (right to liberty and security) and his Article 8 right (right to respect for private and family life).
The Court of Protection Rules 2007 did not have provision for the approval of a settlement but the court had power to do so following YA(F) v A Local Authority
 EWHC 2770 (COP),  COPLR Con Vol 1226
. The approval fell under r 21.10 of the Civil Procedure Rules 1998.
The terms of the compromise agreement included:
- a declaration that ECC unlawfully deprived P of his liberty for a period amounting to approximately 13 months;
- ECC would pay P £60,000 damages arising from his unlawful detention;
- ECC would waive the approximate £25,000 fees payable to the care home;
- P’s damages award was excluded from means testing in relation to P being required to pay a contribution to his community care costs.
The court was greatly troubled by the manner of P’s removal and lack of alternative options considered for his care.The conduct of ECC had been totally inadequate and their failings significant. There could be no doubt that ECC‘s practice was substandard. They opposed P returning to his home until the last possible moment. The very sad and disturbing consequences for P could not be ignored and the significant wrong done to P needed to be adequately compensated. Held
The case involved a substantive breach of P’s rights. Had it not been for the unlawful actions of ECC, P would have continued to live at home with the required support. The deprivation of his liberty during the late stage of his life only served to compound its poignancy.
The court referred to London Borough of Hillingdon v Neary
 EWHC 3522 (COP),  COPLR Con Vol 632
whereby a period of 12-months detention resulted in an award of £35,000 and the Local Authority and Mrs D
 EWCOP B34. Taking these cases into account the level of damages for the unlawful deprivation of an incapacitated person’s liberty was between £3,000 and £4,000 per month.
P was unlawfully deprived of his liberty for a minimum of 13 months and arguably 17 months. The suggested compromise agreement placed the level of damages between £3,500 and £4,600 per month. There were other elements to the agreement which would provide P with further significant compensation and mark the seriousness of the case.
The court in approving the compromise agreement was satisfied that it provided P with a fair and reasonable award, in so far as a monetary award could compensate him for such loss of his liberty.This case summary appears in the Court of Protection Practice Alerter as part of the online subscription to ensure subscribers are updated with the latest developments and cases.
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Neutral Citation Number:  EWCOP 1
Case No: 12399224
COURT OF PROTECTION
MENTAL CAPACITY ACT 2005
IN THE MATTER OF CP
First Avenue House 42-49
Date: 7th January 2015
District Judge Mort
ESSEX COUNTY COUNCIL
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CP (4) (by his litigation friend, the Official Solicitor)
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Ms Alev Giz, instructed by Essex County Council Legal Services for the Applicant
Mr Andrew Bagchi instructed by Irwin Mitchell LLP on behalf of the Official Solicitor for the 4th Respondent
The 1st and 2nd Respondents appearing in person and the 3rd Respondent not attending
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Hearing dates: 1.10.14 and 5.11.14
Essex County Council v RF and Others (Deprivation of Liberty and Damage)  EWCOP 1