Nonagenarian unlawfully detained in care home for nearly two years

22 January 2015 by

UnknownEssex County Council v RF and Others (deprivation of liberty and damages) [2015] EWCOP 1 – read judgment

The Court of Protection has castigated the actions of a County Council in depriving an old person of his liberty and dignity in their overreaction to reports that he might be subjected to financial exploitation. This, said the judge, amounted to punishing the victim for the acts of the perpetrators.

Factual background

The facts of this case can be summarised very shortly. P, a 91 year old gentleman, is a retired civil servant and WWII veteran, and until February 2013, has lived in his own home for fifty years. He has been alone with his companion cat since the death of his sister in 1998. He is described as being a very generous man ready to help others financially if he believed they needed it, as well as making donations to various charities.

P has a form of dementia, and the jointly instructed psychiatrist informed the Court that he lacked capacity to litigate, and to make decisions regarding his care and residence. For nearly two years he has been at a care home run by Essex County Council (ECC), where he was brought as a result of a safeguard alert. These proceedings, challenging the lawfulness of this placement, were initiated by RF, a close friend of P’s. All of P’s friends were of the unanimous view that it was in P’s best interests for him to return to his home and cat with a package of care in place. But his niece, JN, and nephew PN maintained that it was in P’s best interest to stay where he was.

The circumstances of P’s removal were disputed but, if true, are frankly shocking. Following the alert, social workers turned up at his home.

 P was wearing his dressing gown and was without trousers or pyjama bottoms. It is alleged that SW1 [one of the social workers involved] told P that he was to go with her to an hotel. When P declined it is alleged SW1 told him that she would call the police. … P was taken from his home and placed in “CH” a residential home for those living with dementia. P was ‘very reluctant’ to leave his home and was very distressed.

As DJ Mort observed, ECC had no authorisation to remove P from his home and place him in a locked dementia unit. An urgent authorisation was not put in place until five months after this event and a standard authorisation not until  a month after that. It was by no means clear that P lacked capacity at the time. The authorisation included restrictions on P’s attendance at Church and contact with friends. Although the facts are somewhat unclear, this latter clampdown seems particularly brutal and unnecessary.

In any event, in August 2013, the capacity assessment undertaken by an ECC agency employe concluded that P did have capacity to make a decision regarding his accommodation. The standard authorisation which had been put in place in July 2013 expired in October 2013, rendering P’s detention unlawful. Nevertheless, no action was taken to further authorise the placement until nearly a year later.

Throughout the whole of the period of P’s placement at CH he expressed a consistent wish to return to his home. Yet despite the assessments concluding that P did have capacity to make decisions regarding his residence, and the recommendations that it was in his best interests to return home, ECC did nothing to enable him to do so. The result is that P was detained against his wishes for a period of 17 months.

It goes without saying that 17 months in the life of a nonagenarian is a precariously long stretch of time. The ECC admitted that during this time P was locked in at the care home and not free to leave; he was under continuous supervision and control. Given his advanced years, he could have died during this period of incarceration, away from his own home and possessions, deprived of the company of his friends and cat –  for the crime of being aged and rather muddled. I turn (for the second time since his book came out in the UK last year) to the US physician and Reith lecturer Atul Gawande, the first half of whose book “Being Mortal” covers the way we care for our old, or how, in Gawande’s words,

we replaced the poorhouse with the kinds of places we have today.

Concern about safety and lawsuits increasingly limited what people could have done in their assisted living apartments, mandated what activities they were expected to participate in, and defined ever more stringent move-out conditions that would trigger “discharge” to a nursing facility…. even children are permitted to take more risks than the elderly. They at least get to have swings and jungle gyms.

Gawande’s eloquent condemnation of the care of the elderly in his home country is equally applicable here, and this case is a stark example of our neglect of the very thing that makes life in people’s twilight years bearable: their autonomy.  Interestingly, it was clear that on the eve of  the first  hearing in P’s case, on 1 October 2014, ECC had seen the error of their ways and notified the parties that they supported P’s return home. Unfortunately his niece and nephew did not.

However, it was finally agreed before the parties that the court should make final 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 declarations accordingly.

Deprivation of liberty and damages 

P’s advisers notified the court that they were ready to issue proceedings for damages  for breach of P’s procedural and Convention rights (invoking the right to liberty under Article 5 and the right to respect for privacy and home under Article 8) and would include aggravated damages for false imprisonment. The OS intended to claim damages for the whole of the 17 month period of P’s detention at the care home.

The COP therefore had to consider whether the terms of a compromise agreement reached between the parties were in P’s best interests, and whether the proposed award was adequate to the deprivations and indignities P had suffered. DJ Mort was “greatly troubled” by the manner of P’s removal from his home in February 2013, followed by his placement in a 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. Indeed, the independent best interests assessor comments in his report dated 7/7/14 ‘the least restrictive options were never tested’ and further ‘He (P) was never given the opportunity and support to remain in his own home this being the least restrictive option’.

It appears that one of the triggers for P’s removal seems to have been concern about the risk to him from financial abuse. If that is correct I fail to understand why P’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. Action against the perpetrator(s) would have been preferable to the removal of the victim. [my italics] The problem could have been addressed by the less restrictive and simple option of appointing a deputy to manage his property and affairs.

This case involved a “substantive breach” of P’s rights. Had it not been for the unlawful actions of the Council, the old gentleman would have continued to live at home with the type of support that had at last been put in place. The deprivation of his liberty during this late stage of his life, said the judge,  only served to “compound its poignancy.”

P had been unlawfully deprived of his liberty for a minimum of 13 months and arguably 17 months. The compromise agreement placed the level of damages at between £3500 and £4600 per month. Mort DJ approved the compromise agreement made an order accordingly.
Sign up to free human rights update s by email, Facebook, Twitter or RSS

Related posts:


  1. Having working in care homes I can can firmly say that wherever possible people are better of with their families. Care homes are good at giving an impression that they are other than prisons for the elderly but many are effectively just that.

    As for the court of protection, there have been thousands of complaints from families about its decisions meanwhile social services in Britain are run according to a set of values contrary to common sense and the values of the general population.

  2. Lofthouse says:

    After chairing the Lords Select Ctte Post Legislative Scrutiny of the Mental Capacity Act last year, Lord Hardie QC concluded that ‘tens of thousands’ of adults had been unlawfully detained in the UK—13-march-2014/ – this case is the tip of a disgusting iceberg. Couple this to the fact that many have been ”diagnosed” as having ‘end stage dementia” and been killed using the liverpool care pathway drugs without consent (eg Wanda Maddox father–trying-rescue-father-care-home-believed-die.html), one can see why the State refused to order a judge led public inquiry.

    We asked the Govt. to set up a helpline for people who had been unlawfully detained and were having their homes stolen from them at a rate of £600 a week – Govt. didnt think it was necessary.


  3. What an appalling case. Glad justice won in the end but was his home looked after meanwhile? Was the cat OK? How was he after going home?

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: