Well, admittedly the DoLS don’t apply in supported living, but it took Mr E’s family about fourteen months to get Mr E home again, when he was unlawfully deprived of his liberty. It took Mark Neary just under 12 months to get Steven Neary home again, using the DoLS. And today we learned that it took Mrs D over a year to return home to live with her husband, after she had been deprived of her liberty using the DOLS.
The judgment in The (Unnamed) Local Authority v Mrs D was not a finding by the Court of Protection of unlawful detention, but was the Court’s approval of a compromise agreement where the local authority agreed to pay Mrs D £15,000 and her husband a further £12,500 for violations of her Article 5 rights and both their Article 8 rights. The facts of this case are chillingly reminiscent of what happened in Neary v LB Hillingdon.
Mrs D went into respite care for a few weeks in August 2011, but the local authority refused to discharge her back home to live with Mr D when he asked. With both Mr and Mrs D asking for her to go home, the local authority recognised that she was deprived of her liberty, but no authorisation was sought by the care home until a month later (in October 2011).
The first standard authorisation was granted, and ‘was explicitly stated to be conditional upon an application to the Court of Protection being considered’ . But the local authority didn’t apply to the CoP. Neither did it apply to the CoP when a second authorisation was issued and the same recommendation was made. Nor the third. With Mr D continuing to oppose Mrs D remaining in the care home, and Mrs D becoming increasingly distressed about being there, staff apparently kept discussing their intention to go to the Court of Protection at meetings, but somehow didn’t get around to it until May 2012.
When the local authority did eventually apply to the Court of Protection, it was for a determination of Mrs D’s best interests and an injunction against her husband. They neglected to mention that this case concerned deprivation of liberty and so the Court of Protection – not realising the urgency of the situation – listed a hearing for June.
In the meantime, the local authority didn’t bother to renew the standard authorisation. The judgment does not report why. Perhaps they’d adopted a creative reading of the Cheshire judgment and decided that Mrs D was not deprived of her liberty. But even the most restrictive reading of Cheshire still considers that where a person has somewhere else to go – as HL, Steven Neary and Mr E did – ‘matters are very different’ and the person may well be deprived of their liberty. Perhaps they mistakenly believed that having put the matter before the Court of Protection there was no need for an ongoing authorisation.
When, eventually, experts were instructed by the Court to report on Mrs D’s best interests, they recommended that she go home. The local authority continued to resist their recommendations until December 2012, when they changed their mind and put in place a care plan for Mrs D’s return. She had been in the care home around 13-14 months by this point.
Mrs D’s lawyers – instructed by the Official Solicitor – sought damages for violations of her and Mr D’s human rights. The local authority conceded that Mrs D had been unlawfully detained when it stopped bothering to apply for DoLS authorisations, but disputed the contention of Mrs D’s legal representatives that the initial authorisations which they had issued were invalid as they had not complied with the conditions requiring them to apply to the Court of Protection. Mrs D’s lawyers felt pretty confident that if they did pursue this issue they would win, but it was felt not to be a proportionate use of public funds and in any case Mrs D’s cognitive functioning was deteriorating and would ‘be wholly unaware of any admission or judicial finding of the breach of her Convention rights’, so it was felt not to be in her best interests.
The Court reviewed the (scant) published judgments on damages awards for violations of Article 5 and 8 ECHR in connection with the MCA and decided that whilst £15,000 for Mrs D and £12,500 for Mr D was towards the low end of the spectrum (in contrast with Neary, which was £35,000), it was within the acceptable range. They approved the compromise.
Whilst one can fully understand the Court’s reasoning, and that of Mrs D’s lawyers, that it would not bring her any significant benefit to pursue the case, it is unfortunate for everybody else that the question of the legality of the initial authorisations was not decided by the Court of Protection, nor the Article 5(4) issues. This is one of the key problems with the DoLS – that the appeal mechanism is inaccessible unless supervisory bodies initiate an application, and they don’t. A hearing on this matter might have considered precisely how a case is supposed to go to the Court of Protection – should the local authority apply (as Neary seems to suggest), or is this the purpose of an IMCA under s39D MCA? Was there even an IMCA referral in this case? It could also have decided the important question of whether a BIA really can impose conditions on the supervisory body (I think technically, they probably can’t unless the care home was run by the council, but I’m not sure that means the authorisation was sufficient to comply with Article 5 in the absence of an application to the Court).
In any case, this judgment makes for depressing reading. This was a local authority who knew it was supposed to go to the Court of Protection and then didn’t for many months (one also feels for the unheeded BIA in this case, recommending that an application be made). A woman was deprived of her liberty and given no adequate support to exercise her Article 5(4) rights to challenge that, despite her protests and those of her husband. A couple who had lived together for 37 years were forced to live apart for over a year, although experts eventually agreed that it was in their best interests to live together. It took the DoLS over a year to reunite them. As this case shows, failure to apply to the Court of Protection when a person is deprived of their liberty and is objecting is no trivial procedural mistake: these are stolen days and weeks and months which this couple will never have back. The casual way that the liberty of older and disabled people is treated under the MCA DOLS should be giving us all some sleepless nights.