Essex County Council v RF and Others (deprivation of liberty and damages)  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.
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.
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