• Re: D – children and DoLS

• W City Council v L

– DoLS at home and imputability to the

state?

• potential liabilities

– Essex CC v CP

Re D: A Child: Deprivation of Liberty 2015

EWHC 922 Fam

• Mr Justice Keehan – March 2015

• inherent jurisdiction of court

• decision on whether D being deprived of

liberty in hospital and if parental consent

applied

• D suffered from ADHD, Asperger’s syndrome

and Tourette’s syndrome

• admitted to hospital run by ‘Child and

Adolescent Mental Health Team’ March 2012

• locked door unit – subject to regular

observations

• not ‘Gillick competent’ to consent to terms of

residence

• does Cheshire West apply?

• is D being deprived of liberty?

• if so can parents consent to this on his

behalf?

• doubtful interpretation of Nielson v

Denmark (1988) where Court found

hospitalisation of 12 year old child for 5

months in hospital not a deprivation as

reasonable exercise of mother’s parental

rights

• Court of Appeal in RK v BB (2011)

suggested Nielson cannot mean parents

can authorise what would be DOL as

engages Article 5

• judge rejected this – not bound to follow

• LA submitted does not apply to under 16

• judge rejected – acid test applies

• on facts D is being deprived of liberty

• benevolence of regime irrelevant

• yes - decision falls ‘within zone of

parental responsibility’ (undefined)

• exercise of this depends on age and

situation of child – applied to D ‘wholly

different’ from child who does not suffer

from his disabilities

• is this ‘relative normality’ by back door?

• decision to deprive of liberty in hospital

“overwhelmingly” in D’s best interests

• parental decision – state cannot interfere

• “Might well be very different if parents

acting contrary to medical advice”

(why?)

• decision fact specific and “I do not

propose to give wider guidance”

• Mr Justice Bodey – February 2015

• perhaps surprising finding of no DOL

• Mrs L – 93 year old widow lives in her own

home - upper storey flat

• dementia since 2004

• family heavily involved in care

• Mrs L prone to wandering

• can access garden but gate leaving

garden difficult to open

• door sensors operate on gate at night –

alarm fitted

• Mrs L never tried to leave

• Mrs L happy living in her home

• appreciates garden

• would distress to go into residential care

• care ‘overseen’ by social worker

• LA say that there is a DOL – unable to

open gates and returned to home if did

manage to ‘escape’

• care is ‘imputed’ to state - if family

stopped then LA must step in

• opposed LA’s view – argued not a DOL

• family ‘driving force’ behind care

package/arrangements

• absence of ‘controlling State hand’

• deprivation to restriction is question of

degree

• ‘Own home’ is ‘relevant factor’

• Mrs L has no objection

• home is not a ‘placement’

• arrangements in best interests for ‘liberty

and security’ rights of Article 5

• concluded this is “finely balanced case”

but not a DOL

• also not imputable to state – latter role

‘diluted’ by strong family input

• CP, 91 y/old male. Lived in own home for

50 years (with Fluffy the cat). Dementia,

difficulty mobilising and kidney injury

• Essex CC moved CP from his home to a

care home on 2 May 2013 following

safeguarding alert. P initially declined to

go but was persuaded by a friend

• Urgent authorisation 27 June 2013 and SA

4 July 2013 but “by no means clear P

lacked capacity at the time”

• conflicting capacity assessments 14 August

(saying P had capacity) and 16 August

(saying he did not)

• BIA 3 September 2013 concluded P had

capacity re: residence and should be

allowed home

• further capacity assessments 26 November

2013 and 17 June 2014 concluded P lacked

capacity

• SA expired 25 October 2013 but not

renewed. No further SA until 8 July 2014

• CP expressed a consistent wish to return

home

• only the day before the final hearing did

Essex CC agree that CP should return

home

• niece and nephew considered it in CP’s

best interests to remain in care home

• close friend (RF) and OS considered it in

his best interests to return home

• an independent nurse specialist

concluded there were no

“insurmountable barriers” to a return

home and it was in his best interests to

do so, with a 24 hour care package

• returned home on 5 November 2014

• capacity – declaration CP lacked capacity

re: care and residence

• costs – Essex CC agreed to pay P’s costs

“likely to exceed £50,000 and it has been

suggested they may exceed £64,000”

• financial compensation for P

• claim was for breach of Article 5 and 8

rights for the 17 month period of

detention at the care home

• Essex CC admitted breaches save for the

4 month period of SA

• court approved:

– declaration that Essex CC unlawfully

deprived CP of liberty between at least

2/5/13 and 4/7/13 and between 15/8/13

and 7/7/14

– £60,000 for unlawful detention

– Essex CC waived fees payable by P to the

care home of £23,000 to £25,000

A ‘procedural breach’ of at least 13 months.

But as well:

“There is no doubt that P has been failed by ECC. The

protection for the individual enshrined in the MCA and Codes of

Practice was ignored by ECC….” (66)

“The conduct of ECC has been totally inadequate and their

failings significant….it is hard to imagine a more depressing and

inexcusable state of affairs” (67/68)

“In my judgment the conduct of ECC has been reprehensible.”

(69)

• judge distinguished cases involving

procedural breaches and those involving

substantive breaches

• procedural – where P would have been

detained in any event

• substantive – P would not have been

detained if the authority had acted

lawfully

• taking into account Neary and Mrs D cases

– damages for the unlawful deprivation of

an incapacitated person’s liberty is

between £3,000 and £4,000 per month

• in CP’s case

– £3,500 to £4,600 per month

• remember as well….costs….reputational

damage for individuals and the authority

We hope you found it useful.

Please get in touch if you have any questions or wish to

discuss the topics we covered further…

neil.ward@brownejacobson.com | +44 (0)121 237 3927