• 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.
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discuss the topics we covered further…
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