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 remainder of his days.
That sound? That’s the sound of my head banging against my desk after reading Essex County Council v RF & Ors (Deprivation of Liberty and damage). This is the latest in a string of disgraceful cases concerning serious human rights violations by local authorities who have misused (or not even used) the Mental Capacity Act 2005 (MCA) and the deprivation of liberty safeguards (DoLS). I have already blogged about the recent cases of Mrs D, Milton Keynes Council v RR and Somerset v MK, and common pattern emerges in all of these cases. Local authorities have either removed people from their homes, or else refused to let them return to their homes, on the basis of ‘safeguarding’ concerns, which they have either not properly investigated or else which could have been addressed in other ways. They did not seek any court approval, they did not apply the DoLS until later (if at all), and the person and their family were left for prolonged periods of time without any accessible means to challenge these actions. These actions caused considerable distress to the detained person and their family, and in the Milton Keynes case RR never went home at all because the local authority refused to put in place the support that would be necessary for them to do so.
This post is, I am afraid, entirely written in terms of failure to comply with the MCA and the DoLS; given that local authorities have not even grasped ‘old paradigm’ rights here I think we can safely say that this would also be a flagrant violation of the United Nations Convention on the Rights of Persons with Disabilities.
The removal of P from his home
In this latest case, Essex County Council (ECC) removed P, a 91 year old gentleman, from his home of 50 years, after being contacted by his friends from church who had concerns about his vulnerability to financial exploitation and self care. The manner of P’s removal from his home is disputed. P was wearing his dressing gown but no trousers or pyjama bottoms (I’m not quite sure if this detail is included because this is supposed to be evidence of a lack of self care – in which case I’d need to make safeguarding alerts about the several of my student neighbours – or whether this is a concern about removing a man from his home in a state of undress). It is alleged that a social worker told P that he was to go with her to a hotel, and that when he declined she told him that she would call the police, and that a friend of P’s who was present persuaded him to go. P was said to be ‘very reluctant’ to leave and very distressed.
There is no evidence that ECC considered what support could be put in place to keep P safe in his own home. DJ Mort (who has been unlucky enough to hear some of the other cases listed above) commented:
- 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. The problem could have been addressed by the less restrictive and simple option of appointing a deputy to manage his property and affairs. However ECC would say that other factors influenced their decision to remove P from his home.
Although there was a capacity assessment, astonishingly it did not record P’s views about the move to a care home (para 13) and DJ Mort raises doubts about its quality, observing ‘It is by no means clear that P lacked capacity at the time’ (para 16).
No application to the Court of Protection or DoLS authorisation
Now, at the point at which ECC did this, they had no DoLS authorisation. P’s removal from his home took place in May 2013 – before the Supreme Court’s ruling in Cheshire West. But even on the most restrictive analysis of deprivation of liberty available at that time, it’s glaringly obvious that he would have been considered to be deprived of his liberty. In the Court of Appeal ruling in Cheshire West, Lord Justice Munby (as he then was) stated that ‘Matters are, of course, very different where a person has somewhere else to go and wants to live there but is prevented from doing so by a coercive exercise of public authority’ (paragraph 58), and of course P did have somewhere else where he wanted to live than the care home – his own home. And in the Court of Appeal in P and Q, Wilson LJ placed a lot of emphasis on the importance of objections in whether or not a person is deprived of their liberty. So even then, it’s hard to see how ECC could have thought that there was no need for a DoLS authorisation, and it’s deeply, deeply, concerning that front line social workers and safeguarding managers did not realise this.
Neither was there any application to the Court of Protection. In obiter* remarks in A Local Authority v A (A Child) Munby LJ said the following:
…if there is objection to the steps it is proposing to take, either from the vulnerable adult or from relatives, partners, friends or carers, it seems to me that a local authority needs to enlist the assistance of the court – either the High Court or the Court of Protection – before it embarks upon any attempt to regulate, control, compel, restrain, confine or coerce a vulnerable adult. Only if the person is compliant and there is no objection from those concerned with his welfare is a local authority probably going to be justified in having resort without judicial assistance to the doctrine of necessity. And even where the person appears to be compliant a local authority needs to act with considerable caution before attempting even to regulate or control, let alone to restrain or coerce, a vulnerable adult. One cannot conflate absence of objection with consent. And to equate helpless acquiescence with consent when a person is confronted with the misuse or misrepresentation of non-existent authority by an agent of the State is both unprincipled and, indeed, fraught with potential danger: seeR (G) v Nottingham City Council and Nottingham University Hospital  EWHC 400 (Admin),  1 FLR 1668, at paras -, applying in the context of Article 8 of the Convention the principle expounded in relation to Article 5 by the Strasbourg court in HL v United Kingdom (2004) 40 EHRR 761 at para  and in Storck v Germany (2005) 43 EHRR 96 at para . “Submission in the face of asserted State authority is not the same as consent”: ibid at para  (paragraph 75)
Munby LJ’s analysis in this case did not consider what powers were available under the DoLS. However, it’s certainly clear that in Munby LJ’s opinion the common law doctrine of necessity, which s5-6 of the MCA is based upon and provides the basis on which local authorities undertake most actions in a person’s best interests, does not provide authority for an act like removing a person from their home where they are objecting. Now, ECC claimed that P left his home voluntarily (paragraph 16). It’s not quite clear what they mean by this – that he actively asked to leave his home, that he was keen to go to the care home when it was suggested, or simply that they did not need to use force. If the latter, then the above paragraph suggests that this is simply not enough. Even if ECC did not trick P into leaving by pretending they were taking him to a hotel, and even if they did not bully him by threatening to call the police (one wonders what the police would have done in such circumstances), Munby LJ is clear that the absence of objection is not consent and that helpless acquiescence should not be conflated with consent either.
What if ECC had used the DoLS, would that be sufficient authority for removing him to the care home against his will? I suspect there are those who would argue that it does, but I am doubtful. In LB Hillingdon v Neary the above quoted comments by Munby LJ were the ratio** for Jackson J in finding that Hillingdon had violated Steven Neary’s Article 8 rights. He said that in cases of disagreement:
The ordinary powers of a local authority are limited to investigating, providing support services, and where appropriate referring the matter to the court. If a local authority seeks to regulate, control, compel, restrain, confine or coerce it must, except in an emergency, point to specific statutory authority for what it is doing or else obtain the appropriate sanction of the court: again see Re A and C (above) and the authorities referred to therein. (para 22)
He went on to say that the DoLS are ‘not to be used by a local authority as a means of getting its own way on the question of whether it is in the person’s best interests to be in the place at all’ and that ‘Significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary’ (para 33). So even if there was a DoLS authorisation, if P was still objecting to moving to the care home, it seems that ECC should still have applied to the Court of Protection for authorisation for their actions.
This brings me to my regular rant about the MCA and DoLS Codes of Practice, and the old and new guidance on adult safeguarding: it is at no point made clear that the MCA and the DoLS do not provide authority for coercive interventions of this nature. In Neary, Jackson J cites Magna Carta as authority for this principle (!) – although I’m inclined to think it was more ‘invented’ than ‘rediscovered’, as a result of judicial anxiety about the lack of safeguards under the MCA and the paucity of the safeguards under DoLS. But whatever its source, by the time the government came to write the safeguarding guidance under the Care Act 2014 there was absolutely no excuse for not making this clear. And yet they didn’t (although I and others wrote submissions setting out these concerns and citing the growing number of cases like this), and this is why I think we will continue to see cases where this happens, because without making clear the limits of the MCA and the DoLS in relation to adult safeguarding, the guidance is a recipe for human rights violations of this nature.
Restrictions on contact and church attendance
Some two months after P was removed to the care home, ECC did eventually apply for a standard authorisation under the DoLS. For reasons that are not elaborated in the judgment, this authorisation ‘included restrictions on P’s attendance at Church and contact with friends’ (para 16). This strikes me as odd, since it was P’s own friends at church who had raised the alarm about his welfare in the first place, but there is no discussion of the basis for this.
This brings me onto another bugbear of mine about the MCA and the DoLS: the lack of clarity about whether they provide authority for restrictions on contact. Now, my view is that the general defence under the MCA does not. This is partly because it is a major interference with Article 8 rights, and requires some kind of independent scrutiny. But it’s also because logically the general defence should not afford people greater authority than the kinds of formal authority conferred by the Court of Protection officially appointing somebody as their deputy. Under s20(2)(a) MCA, it’s very clear that deputies absolutely may not ‘prohibit a named person from having contact with P.’ In contrast, those appointed under Lasting Powers of Attorney, and the Court of Protection itself, can do so. It would be irrational if those acting under the general defence had great powers than those acting with specific authority conferred upon them by the Court of Protection, so I think that the informal mechanisms of the MCA cannot be used to restrict contact with named persons.
It is slightly less clear to me whether a DoLS authorisation can include such restrictions on contact. The problem is, at various points deprivation of liberty has been analysed in such a way as to include restrictions on contact with others (probably based on the Bournewood case), and so if indeed that is a component of a deprivation of liberty, it logically follows that this must in part be what an authorisation authorises. But the trouble is, restrictions on contact also raise Article 8 issues, and Article 8 has a life of its own. And in this case (although it is never discussed in the judgment) it also strikes me that there are Article 9 ECHR issues – regarding the serious interference in P’s freedom of thought, conscience and religion through the restrictions on his attendance at church (and contact with that church community). I’m inclined to think that these probably raise separate issues requiring a court order, since they fall within the ‘significant welfare issues that cannot be resolved by discussion’ element of Jackson J’s ruling in Neary. That is to say, contact is an area where the DoLS can’t be used by a local authority to get its own way and must be placed before the court.
Either way, it strikes me that this is another area where clarity is desperately needed – and yet again, it is not offered by the DoLS or MCA Codes of Practice or No Secrets. The new Care Act safeguarding guidance is somewhat ambivalent on this. On the one hand it states that ‘While abusive relationships never contribute to the wellbeing of an adult, interventions which remove all contact with family members may also be experienced as abusive interventions and risk breaching the adult’s right to family life if not justified or proportionate’ – which seems to me to implicitly suggest that this is a step which could be taken without application to a court, so long as it’s thought to be justified and proportionate (para 14.82). On the other hand, it goes on to say that Managers ‘ should have access to legal advice on when proposed interventions, such as the proposed stopping of contact between family members, require applications to the Court of Protection’ (para 14.174). I’m not quite clear why only managers need access to such advice, but at least it is suggested that they might need it.
Ideally, at some point, the Court of Protection will address this matter head on, and make crystal clear what authority the MCA and the DOLS confer to restrict contact with a person’s friends and family, or to restrict observance of religious practices, and when you need to go to court.
Dodgy DoLS, no IMCA, no application to the Court of Protection
P was to remain in the care home for another 17 months. During this time, ECC issued further standard authorisations, which lapsed for a period of four months before the Official Solicitor apparently had to ask them to put another authorisation in place (para 64). One of the more puzzling elements of this judgment are suggestions that at least one of these authorisations related to an assessment by an independent best interests assessor who had concluded that P had the mental capacity to decide his residence and should be allowed to return home (para 19). It is said that his social worker re-assessed P and concluded that he lacked mental capacity, but I cannot see on what basis an authorisation could be issued if the mental capacity assessment was not satisfied. It is neither here nor there what the social worker who is not a DoLS assessor thinks as to P’s capacity – the whole point of DoLS is guard against the misjudgments and professional lapses (HL v UK, para 121) of those practitioners involved in a person’s care, through an independent assessment.
The following year, after the standard authorisations had lapsed, the OS asked for a new one to be put in place (presumably so that P can access non-means tested legal aid to challenge his detention). At this point, the BIA ‘was recommending that it was in P’s best interests to be returned home’ (para 22). It is unclear whether this means that the BIA concluded that it was not in P’s best interests to be detained (in which case, technically the DOLS authorisation cannot be issued as the best interests test was not satisfied) or the BIA performed a kind of fudge – which is that it is in P’s best interests for the detention to be authorised so that he can access legal aid, even if it’s not actually in his best interests to be detained. So, there are (for me) a number of questions about these DoLS authorisations.
You might now be wondering how the case ended up in the Court of Protection. Perhaps P had an IMCA who helped him to appeal? It seems that ECC made no referral to an IMCA, despite the requirements of s39D(5) MCA, Did ECC apply to the Court of Protection for authorisation to detain P? No. Shockingly, what actually happened is that ECC made a somewhat brazen application to the Court of Protection to be made P’s deputy for property and affairs. At this point, P’s friend RF (who was presumably notified of this application) raised concerns about ECC’s actions, and eagle eye District Judge Mort made an order on 25th March 2014 inviting RF to file a DoL application.
Now, it seems to me that there was a degree of procedural creativity here, since the DoLS authorisation had expired the previous October, so there was no authorisation to appeal against, nor funding for an appeal. Which is presumably why the OS had to ask ECC to issue a new standard authorisation in July, to secure the funding for an appeal. Anyway, whatever the process, this case only ended up in court through a series of happy accidents in an otherwise extremely unhappy affair – that RF was notified of the deputyship application, that RF thought to raise their concerns and that eagle eyed District Judge Mort clocked that this was a potentially serious human rights abuse and had RF make a further application relating to deprivation of liberty. What’s truly astonishing here is that the order inviting RF to apply to challenge the detention was made in March 2014 (around the time of the Cheshire ruling), and ECC still did not take the step of issuing a standard authorisation until asked to by the OS in July!!
If we needed any more evidence that the appeal mechanism of the deprivation of liberty safeguards is not working, then this is it.
Costs, damages and a return home
ECC only changed their position that it was in P’s best interests to remain in the care home the day before the final hearing. P and his friends from church were unanimous that he should go home, however his niece and nephew felt he would be safer in the care home. An independent nursing report concluded that she should go home, and this appears to be what swayed ECC.
As a result of these serious breaches, District Judge Mort endorsed a compromise agreement between the parties that ECC would pay P’s costs, and would also give him damages for the 13 months (and arguably 17 months) he was unlawfully detained. They would put in place a package of 24 hour care for him to return home, and when they assessed his contribution to this they would not take into account the damages. The judgment is important in terms of its reasoning about damages, but it is clear that this in no ways makes up for what happened. As DJ Mort wrote, this is not just about failure to observe the proper procedures:
- This case involves a substantive breach of P’s rights. Had it not been for the unlawful actions of ECC, P would have continued to live at home with the type of support that has now been put in place.
- P was 90 years of age when he was unlawfully removed from his home. The deprivation of his liberty during this late stage of his life only serves to compound its poignancy.
Two passing remarks about deputyship
I just want to make two further remarks in passing about this case concerning ECC’s application to become P’s deputy. The first is – I wonder what will happen to the deputyship application? Can ECC seriously now be appointed to manage P’s financial affairs – including the damages claim they will pay him? But if not ECC, then who?
The second is something that I’ve been quietly worrying about for a while, which has been brought to my attention by several different people who have encountered different manifestations of this problem: section 40 of the MCA. Under s40 MCA, a person is not entitled to an IMCA if they have a deputy or an attorney appointed under a Lasting Power of Attorney, and this applies even if they are subject to DoLS. So we can easily imagine a scenario where a person is placed in a care home by their deputy or attorney, and P is objecting, and the deputy or attorney is acting as their relevant person’s representative, and P cannot challenge the detention (which the attorney or deputy not only support but have formally consented to or even actively brought about through commissioning the care) because he is not going to receive help from his representative and is not entitled to an IMCA. To make matters even worse, imagine if a person like P in this case had the local authority acting as their deputy. In such circumstances, they would be occupying several seriously powerful positions in his life – being the body responsible for providing or arranging his care under community care law or safeguarding arrangements, agreeing to any charges for it in their capacity as deputy, for authorising the detention as supervisory body, perhaps even for selecting the representative as either his deputy or the supervisory body, and then he is not entitled to an IMCA because of s40. The only hope is that they would appoint a paid representative who might be willing to challenge the local authority.
It seems clear to me that s40 MCA totally undermines the whole point of having IMCAs under the DOLS, which is to ensure that there are ‘special procedural safeguards’ to enable a person to understand their rights of appeal (as per Article 5(2) ECHR) and exercise them (Article 5(4) ECHR). I cannot find any discussion in Hansard or any consultation documents setting out the reasoning behind this provision. I hope that this is one of the things the Law Commission propose be scrapped. In the meantime, it would be helpful if the courts, the CQC or the government could recommend that in such circumstances supervisory bodies may have an implied power to still appoint an IMCA, and may need to do so to ensure compliance with Article 5.
So, in summary, this case really is depressing and inexcusable. And as we see more and more of these cases, they become (to my mind) even more depressing and even more inexcusable, because the supervisory bodies and local authorities cannot claim they did not know that they cannot act in this way.
But my wider grumbles are that despite knowing that these cases are occurring, despite knowing that they constitute serious human rights abuses, or – in the words of Sir James Munby – they are cases where safeguarding itself is an abuse – the Department of Health did not think it appropriate to clearly set out the limits of the MCA and the DoLS in the new safeguarding guidance under the Care Act 2014. I really do hope that when (eventually) the DoLS and the MCA’s Codes of Practice are revised the limits of what can be done under the general defence and the DoLS will be set out much more clearly. I would also be interested to know whether social work training courses (and indeed Best Interests Assessor training courses) are making clear the limitations of what can be done without court authority under the MCA and the DoLS.
In the meantime, I am seriously considering the production of a set of business cards with Munby LJ and Jackson J’s comments about when you need to go to court on one side, and the text of section 39D MCA on when you need to make a referral to an IMCA, and an IMCA’s duty to help a person challenge their detention, on the other.
The Telegraph are reporting that P has been reunited with his cat, Fluffy, and Community Care quote P’s solicitor as saying ‘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.’
*Obiter means ‘comments made in passing’. This means comments made by a judge which aren’t part of the reasoning about the particular case, but are observations they make about that area of law in general. In common law systems, obiter remarks are not binding precedent, but they are very influential.
**’Ratio’ means the reasoning for the decision made by the judge. Unlike obiter remarks, the ratio is binding under the common law system.