We know that a lot has been happening over recent years in relation to the law surrounding deprivations of liberty. It is difficult to keep track of and it can be tempting to stick your head in the sand. However, the case of Essex County Council -v- RF & Ors, which concluded in 2015, provides a crucial reminder of the dangers of doing so (the judgment can be viewed online).
This case involved a challenge against a nursing home placement for P, a 91 year old retired civil servant. P had been removed from his life-long family home and admitted to the nursing home following a safeguarding alert about his self-care and vulnerability to financial abuse. P’s family believed he should remain at the nursing home and felt he would have settled there had it not been for his friends encouraging him to resist the move. P’s friends argued that P should be allowed to return home.
By the time of the hearing, P had been detained against his wishes for 17 months, significant periods of which had not been lawfully authorised. Having declared that P should return home (and handing down a damning judgment in relation to the local authority’s actions), the judge approved a Compromise Agreement for the settlement of P’s prospective claim for breach of his rights under Article 5 (liberty) and Article 8 (respect for private and family life). The Compromise Agreement confirmed that the local authority would:
- pay £60,000 damages for P’s unlawful detention (agreed to have been for a period of 13 months)
- waive any fees payable by P to the care home (estimated at £23,000-£25,000)
- exclude the compensation monies from its future means testing in relation to P’s contribution to his community care costs
- pay P’s legal costs
In total, the pay out by the local authority is understood to have exceeded £100,000. Following the Supreme Court judgment in Cheshire West, the threshold for what constitutes a deprivation of liberty has been lowered - if a person who lacks capacity to make residence decisions is under continuous supervision and control and is not free to leave, authorisation must be sought – if in doubt, seek an authorisation.