Significant Damages Paid for Breaches of Human Rights Following ‘Inexcusable State of Affairs’

The Court of Protection has approved a settlement for a 91 year old pensioner who was held unlawfully in a care home for 13 months, in a case which lawyers representing him say highlights the importance of local authorities complying with Deprivation of Liberty safeguards, the Mental Capacity Act and the Human Rights Act.

In a judgment handed down today (21/01/2015), District Judge Mort commented that “There is no doubt that P has been failed by [Essex County Council]. The protection for the individual enshrined in the MCA and the codes of practice was ignored by ECC.”  ECC have been ordered to pay £60,000 in damages, for breaches of CP’s rights under the Human Rights Act

Irwin Mitchell was instructed by the Official Solicitor, who acted as litigation friend for a man known only as CP due to legal restrictions. CP, a 91 year old war veteran and pensioner, had been living at his family home in Essex for over 50 years. On 2 May 2013 Essex County Council decided to move CP to a care home, after concerns were raised by his friends about possible financial abuse.

Despite CP not being allowed to leave the unit, and despite his wish to return home, there was no lawful authorisation for keeping him at the care home for a number of months, in breach of the Deprivation of Liberty safeguards, and he remained at the care home against his will until October 2014.

Later assessments carried out by independent Best Interest Assessors under the Deprivation of Liberty safeguards all concluded that CP either had capacity to make his own decisions in relation to residence and care and so could not be kept in the care home against his will, or that CP may have lacked capacity to make those decisions but that it was not in his best interests to remain in the care home in any event.

As part of a list of failings highlighted by the Court, the judge confirmed that the local authority had failed “to heed the presumption in favour of his capacity; to adopt the course of action which was less restrictive of P’s rights….to act seriously upon his consistently expressed wish to return home…[or] to refer the matter to court”.

The matter finally came before the Court of Protection when one of CP’s friends objected to the local authority’s application to become his financial deputy. The Official Solicitor was invited to act as CP’s litigation friend and Irwin Mitchell was instructed to act on behalf of CP.

CP’s health unfortunately 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 in his best interests. The local authority initially resisted CP’s return home; however they eventually agreed to fund a package of care to enable CP to return home, the day before the final hearing took place. 

A settlement of £60,000 was agreed in order to compensate CP for the breaches of his human rights and CP is also to be recompensed for any money he has spent on care home fees.  This settlement is believed to be the highest amount awarded for an unlawful deprivation of liberty case before the Court of Protection.

In approving the settlement, the judge said he was taking into account the fact that “significant wrong” had been done to CP, and that had the local authority properly complied with the safeguards, he would not have been in the care home at all. He concluded that “the conduct of ECC has been reprehensible. The very sad and disturbing consequences for P cannot be ignored”.

District Judge Mort also said he “had been greatly troubled by the manner of P’s removal from his home” and that “there is no evidence that consideration was given to the less restrictive option of supporting him at home in accordance with his wish”. In summing up the case, he also commented that “it is 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 rest of his days”.

Caroline Barrett, a solicitor at Irwin Mitchell representing CP, said:

Expert Opinion

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.

“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.

“The settlement which was obtained will benefit CP during his lifetime and is in recognition of the serious failings that have occurred. The local authority has also initiated an independent review of the case, and has facilitated further training for its staff, which will hopefully ensure cases like this will not occur in future.

“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.” Caroline Barrett - Senior Associate Solicitor

If you or a loved one are in need of legal aid, speak to Irwin Mitchell today to find out how our specialist team of solicitors can help with deprivation of liberty.