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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Essex County Council v RF & Ors (Deprivation of Liberty and damage) [2015] EWCOP 1 (07 January 2015) URL: https://www.bailii.org/ew/cases/EWCOP/2015/1.html Cite as: [2015] EWCOP 1 |
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MENTAL CAPACITY ACT 2005
IN THE MATTER OF CP
42-49 High Holborn, London, WC1V 6NP |
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B e f o r e :
____________________
ESSEX COUNTY COUNCIL |
Applicant |
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- and - |
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RF (1) PN (2) JN (3) CP (4) (by his litigation friend, the Official Solicitor) |
Respondents |
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Mr Andrew Bagchi instructed by Irwin Mitchell LLP on behalf of the Official Solicitor for the 4th Respondent.
The 1st and 2nd Respondents appearing in person and the 3rd Respondent not attending.
Hearing dates: 1.10.14 and 5.11.14
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Crown Copyright ©
Circumstances of P's admission to, and residence in, the Care Home (CH)
(Some of these facts remain in dispute between the parties. The court has not heard evidence to resolve the disputed facts as they appear on the papers. The papers reveal the sequence of events set out below.)
The positions of the parties at the final hearing on 1st October 2014
ECC (The applicant)
RF (First respondent and originally the applicant)
PN (P's nephew)
JN (P's niece)
OS (Official Solicitor as P's litigation friend)
P
Report of the independent Nurse Specialist, (TR)
• The manner of P's admission to CH and the discord between his family and friends had not had a positive impact upon P's circumstances
• P had consistently expressed a wish to return home and considerable weight should be placed upon that wish
• P had shown little understanding of his care needs and how they need to be addressed
• There were no insurmountable barriers to P's return home and the management of his needs once there
• The management of P's needs should be led by the professionals involved in his care
• It was in P's best interests to be allowed to return home with a 24 hour care package of care in place to address his needs
• A risk management plan should be drawn up in the event that P refused the care which he needs
• If P's health deteriorated as a result of the refusal of care then a move to a care setting should be actively pursued
The hearing on 1st October 2014
The position at the hearing on 5th November 2014
The remaining issues before me on the 5th November 2014
• Declarations as to P's capacity
• Costs
• Financial compensation for P
Final declarations as to P's capacity
Costs
Financial compensation for P
The terms of the compromise agreement
• A declaration that ECC unlawfully deprived P of his liberty between at least 2/5/13 and 4/7/13 and further between 15/8/13 and 7/7/14, amounting to a period of approximately 13 months.
• ECC to pay P £60,000 damages arising from P's unlawful detention
• ECC to waive any fees payable by P to the care home in which he was detained for the period of his detention. I am told these fees will be around £23,000 to £25,000.
• ECC to exclude P's damages award from means testing in relation to P being required to pay a contribution to his community care costs.
• The payment of all P's costs, to be assessed on the standard basis.
Considerations
• To heed the presumption in favour of his capacity
• To adopt the course of action which was less restrictive of P's rights and freedom of action.
• To have regard the independent evidence of P's capacity by either ignoring it or immediately countermanding it
• To take seriously or act upon his consistently expressed wish to return home
• To appoint an IMCA for him
• To refer the matter to the court
Conclusion
• London Borough of Hillingdon v Neary [2011] EWHC 3522 (COP)
A period of 12 months detention resulted in an award of £35,000.
• The Local Authority and Mrs D [2013] EWCOP B34
No admissions of liability were made save for a 4 month period. Mrs D was offered £15000 plus her costs and Mr D £12,500 plus his costs. The judge approved the award although it was towards the lower end of the range if the award in the Neary case was taken as the bench mark.