England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF Mrs D

		10 July 2013

DISTRICT JUDGE MAINWARING-TAYLOR:

1. These proceedings were heard in private however this judgement is being published at the request of the respondents in order to explain the thinking of the court when approving an agreed order compromising a claim for remedies under s.8 Human Rights Act 1998 ('HRA'), which included a sum in damages, for alleged breaches of a party's rights under Articles 5 and 8 ECHR.
2. The judgement has been anonymised by agreement between the parties, , in order to prevent jigsaw identification and protect the privacy of Mrs D, the incapable person at the centre of these proceedings, in respect of whom the initial welfare application was made and in whose favour this claim for remedies under HRA is compromised.
3. Following resolution of the welfare issues in the case, the application for remedies under HRA was pleaded in a Statement of Case pursuant to an order of the court dated 29^th January 2013 giving permission to the Official Solicitor to bring a claim on behalf of Mrs D for damages for breach of Mrs D's ECHR rights.
4. That Statement of Case averred that at all material times the Local Authority:

a. was a public authority within the meaning of Human Rights Act 1998 ('the HRA');

b. was responsible for the accommodation, social welfare and social care of Mrs D pursuant to its duties and powers under s.21 and s.29 National Assistance Act and had appointed its employee, a social worker as care manager for Mrs D's case;

c. was under a statutory duty pursuant to s.6 HRA not to act in a way that was incompatible with Mrs D's ECHR rights;

d. as a public authority and agent of state, was under a positive obligation to

i. respect Mrs D's Art 5 ECHR right to liberty;

ii. respect Mrs D's Art 8 right to a private and family life with her husband ('Mr D');

iii. take appropriate measures to secure Mrs D's right to liberty in so far as the same was reasonably within its powers -including taking steps to enable Mrs D to have the lawfulness of her detention reviewed speedily by a court;

iv. take appropriate measures to secure respect for Mrs D's right to private and family life in so far as the same was reasonably within its powers – including ensuring any on-going interference with her Art 8 rights was no more than that which was necessary and proportionate to a legitimate aim;

5. Further it was averred that the Local Authority, was, or ought to have been, aware that between August 2011 and April 2012 Mrs D lacked litigation capacity and had neither any legal representative nor any litigation friend who might be in a position to seek to establish or uphold her own rights under Art 5 and Art 8 ECHR.

PROCEDURAL ISSUES

6. Within the Court of Protection Rules 2007 (COPR) there is no provision for court approval of a settlement award for 'P' equivalent to that found in part 21.10 of the Civil Procedure Rules 1998 (CPR). This is unsurprising in that until the decision of Charles J in YA(F) v A Local Authority [2010] EWHC 2770 (CoP) it was not clear that the Court of Protection had jurisdiction to make an award of damages.
7. However as, at common law, a compromise made out of court in respect of a protected party does not bind the protected party (unless proven to be for their benefit) it is prudent for the valid discharge of a claim to be evidenced by the approval of a judge.
8. Further, judicial approval of a compromise is an important protection of the interests of a protected party and hence approval of the compromise on behalf of Mrs D was appropriately sought from a judge of the Court of Protection who was fully appraised of the background to the case and the basis for the settlement agreement.
9. Under COPR r.9 in any case not expressly provided for by the COPR rules or the practice directions made under them, the Civil Procedure Rules 1998 may be applied with any necessary modifications, insofar as is necessary to further the overriding objective. Hence, in the present case the usual procedure under CPR 21 for approving a compromise on behalf of a child or protected party was followed. .
10. Ms Dolan, Counsel instructed for the Official Solicitor on behalf of Mrs D, provided a written advice for the Court setting out the background to the claim and the basis upon which the litigation friend was being advised to accept the offer of compromise.

BACKGROUND TO THE CLAIM

The Parties and HRA Duty

11. The First Respondent, Mrs D suffers with Huntingdon's disease (a neurodegenerative disorder causing progressive physical and cognitive disabilities) and has considerable care needs. It has not been in issue in the litigation that at all material times she lacked litigation capacity and the capacity to decide where she should live. She has been represented throughout these proceedings by, the Official Solicitor as her litigation friend.
12. The Local Authority is the public body responsible for the accommodation, social welfare and social care of Mrs D pursuant to its duties and powers under s.21 and s.29 National Assistance Act.
13. As such the local authority is under a statutory duty pursuant to s.6 HRA not to act in a way that is incompatible with the ECHR rights of Mrs D and to take appropriate measures to secure Mrs D's ECHR rights in so far as this is reasonably within its powers. This duty extends, under Art 5(4) ECHR, to taking reasonable steps to enable Mrs D to have the lawfulness of her detention reviewed speedily by a court and, under Art 8 ECHR, taking appropriate measures to secure respect for her right to private and family life.

Factual Background

14. Mrs D and the Second Respondent ('Mr D') are married and, at the time of events complained of, had lived together sharing their marital home for over 37 years. Their relationship and cohabitation clearly fell within the ambit of their "private and family life" under Art 8 ECHR.
15. In August 2011 Mrs D was placed by the Local Authority for a period of two weeks respite care into a care home. That respite placement was with the initial agreement of Mr D and acquiescence of Mrs D.
16. On 8^th September 2011 Mr D requested to be permitted to take Mrs D home from the care home. This was in accordance with Mrs D's expressed wish. The Local Authority through its staff members indicated to Mr D that they would not permit him to take Mrs D home due to their concerns as to his ability to properly care for her.
17. Since that time Mrs D continued to express her wish to return home. However notwithstanding the objections of both Mr D and Mrs D to her ongoing residence at the care home the applicant's staff determined that Mrs D should remain detained there.
18. The circumstances of Mrs D's residence at the care home from that point amounted to a deprivation of her liberty and was in the absence of any lawful power to detain her.
19. Indeed, despite the applicant's staff recognising, and recording on 20^th September 2011 that Mrs D was deprived of her liberty no authorisation under the MCA DOLS procedures was sought before 25 October 2011.
20. The standard authorisation then granted was specified to last for two weeks and, pursuant to the conclusions of the best interests assessor, was explicitly stated to be conditional upon an application to the Court of Protection being considered.
21. The issue of Mrs D's detention was then discussed by the applicant's staff who concluded that should Mr D not agree with his wife's continued residence at the care home then an application to the Court of Protection should be made. In fact Mr D did continue to object to Mrs D's residence at the care home, however no application to the Court of Protection was made.
22. Instead a second standard authorisation under the DOLS procedure was issued on 7 November 2011 which was specified to last a further four weeks. Again this authorisation was explicitly stated to be conditional upon an application to the Court of Protection being considered.
23. At this time it was noted by a best interests assessor, who was commissioned by the Local Authority to assess Mrs D, that she "has always made her wishes known that she would like to remain at [marital] home" and that she "became visually distressed at missing Mr D".
24. At a further meeting on 22 November 2011 the applicant's staff again determined that Mrs D's case should be referred to the Court of Protection if her husband "continued to resist" her residence at the care home. It was also noted that Mrs D "continues to express a wish to live at home".
25. No application to the Court of Protection was made.
26. In December 2011 a third standard authorisation under the DOLS procedures was issued by the Local Authority and again Mr D's continued objections to Mrs D's residence at the care home were noted. It was decided to "contact the Court of Protection to seek advice" and "begin to prepare Court of Protection proceedings"
27. In fact, despite Mr D's continued objections to the care plan and Mrs D's continued wish to return home, no application to the Court of Protection was made.
28. At further meetings in January 2012 the applicant's staff repeated their intention to make an application to the Court of Protection. However no application to the Court of Protection was made for almost a further three months during which time a further standard authorisation was purportedly issued which, if valid, expired at the latest, on 5 May 2012.
29. On 10 April 2012 the Local Authority eventually made an application to the Court of Protection for a determination as to Mrs D's best interests as to residence and contact with Mr D. An injunction against Mr D was also sought in the proceedings.
30. On issuing the application the Local Authority failed to describe the matter as a challenge to Mrs D's detention under the DOLS scheme and as such the Court was not made aware that there was any urgency in the issue. Hence, following initial directions being made on the papers, a first hearing was not listed until 12 June 2012. No order was sought by the Local Authority to authorise Mrs D's deprivation of liberty after 5 May when the last purported standard authorisation expired.
31. The hearing of 12 June was then vacated and a first inter-parties directions hearing re-listed for 27 September 2012. The Official Solicitor was appointed as litigation friend.
32. On 27 September 2012 a declaration that Mrs D had been unlawfully deprived of her liberty by the applicant at the care home, between 5 May 2012 and 26 September 2012 was made by the court, with the consent of all the parties.
33. Pursuant to directions made at the hearing on 27 September 2012 two experts were instructed to report on Mrs D's case and her best interests as to residence. Both experts provided their reports within two months (by the end of November 2012) and both were supportive of Mrs D being allowed to return home.
34. The Local Authority continued to resist Mrs D's return home until 12 December 2012 when, at a meeting with the experts, the local authority conceded, without recourse to any judicial determination, that a continued deprivation of her liberty at the care home was not in Mrs D's best interests.
35. Having conceded that it was now in Mrs D's best interests to live at home with Mr D a community care plan was then devised by the local authority on 20 December 2012 and on 7 January 2013 Mrs D was discharged from the care home and returned home with that care plan in place.

THE CLAIM

36. A claim under HRA made within the Court of Protection proceedings was particularised on Mrs D's behalf on 28 February 2013 asserting that the Local Authority had through its employees servants and agents:

a. Wrongly failed to bring the issue of Mrs D's deprivation of liberty before the Court of Protection for determination before 10 April 2012;

b. Failed to take into proper consideration Mrs D's own objections to and distress at her enforced residence at the care home;

c. Failed to recognise that the purpose of the MCA procedures is to uphold the substantive and/or procedural ECHR rights of persons lacking capacity;

37. It was averred that Mrs D's return home would have been achieved several months sooner on the same terms had the local authority not unreasonably delayed in issuing Court of Protection proceedings.
38. Specifically, it was averred that proceedings ought to have been issued by the end of October 2011 and, allowing a reasonable period for court hearings to take place, and a similar period of two months for expert reports to be obtained, the return of Mrs D home would have taken place by no later than April 2012.
39. It was averred that in breach of her Arts. 5(1), 5(4) and 8 rights Mrs D's return home was delayed at least 10 months due to the failure of the local authority to (i) bring the matter expeditiously before the court and (ii) to properly indicate to the court the urgency of the DOLS matter in issue.
40. Specifically it was averred that the effect of the Local Authority's failure to comply with the express conditions of its own standard authorisations to refer the matter to the Court of Protection, had the effect of rendering those standard authorisations invalid. As such, there was no lawful authorisation of Mrs D's deprivation of liberty at any stage between 8 September 2011 and 26 September 2012.
41. It was averred that the breach of rights was aggravated by the fact that Mrs D experienced significant and lengthy distress and frustration at her situation. She lost easy access to the essential emotional support of her husband at time when she was also burdened with coping with a significantly debilitating illness. The impact of the breach was said to be particularly significant in the context of Mrs D's serious life limiting illness.

THE COMPROMISE AGREEMENT

42. The applicant had already admitted the breach of Art 5 procedural rights between May and September 2012 and submitted to a court declaration to this effect.
43. However, the Local Authority has not accepted that the standard authorisations issued were unlawful. Nor does the Local Authority accept that delay in bringing this application before the Court (between Sept 2011 and April 2012) was also a breach of Mrs D's Art 5(4) ECHR right to speedy determination of the lawfulness of her deprivation of liberty and that this had the effect of lengthening Mrs D's deprivation of liberty by around ten months. Nor has it been accepted that by reason of the delay there was any infringement of Mrs D's Art 8 rights.
44. However, despite this non-admission of liability, the Local Authority had offered in compromise:

a. an apology to Mrs D for the delay in bringing these proceedings;

b. to pay a sum of £15,000 to Mrs D;

c. to pay the reasonable costs of the action incurred by Mrs D's litigation friend;

d. to pay a sum of £12,500 to her husband Mr D;

e. to pay Mr D's reasonable costs of the action.

THE COURT'S CONSIDERATION OF THE AGREEMENT

45. The Court considered that it was appropriate for the litigation friend to accept the offered compromise on behalf of Mrs D rather than to pursue the case to a final hearing in the hope of achieving a higher sum in damages and/or the additional aspect of a formal declaration as to the extended breach of her rights.
46. The Court considered that it would not be a proportionate use of funds (in a case where all three parties are funded in some way from the public purse) to do so, given the adequacy of the compromise agreed when considered as a whole.
47. Further litigation would be required to establish the contested legal issue of whether compliance with what were mere suggestions by a BIA to bring a matter to the court were a condition precedent to a lawful standard authorisation. Even if only requiring a one day hearing, this would be disproportionately expensive, even though the view of counsel for Mrs D was that she would have good prospects of success on the issue.
48. In coming to a view on the agreement it is relevant to recall that awards under ECHR/HRA are not directly comparable to those in tort, as the principle of all remedies under ECHR is that they are vindicatory rather than restitutionary in their nature.
49. The key question when assessing the adequacy of the compromise offered by the local authority is whether taken as a whole, and despite an open acknowledgment of the extended breach of rights not being made, the declaration already made, combined with a payment of £15,000 to Mrs D, and in the context of a further £12,500 to Mr D, and the offered apology is sufficient vindication of Mrs D's rights to amount to 'just satisfaction' under s.8(3) HRA 1998.
50. Assessing the adequacy of the financial aspect of the compromise is difficult because there are very few reported cases of damages awards made for breaches of Art 5 and 8 rights of incapacitated persons in the context of the MCA..
51. The recent decision of the Supreme Court in R(Faulkner) v Secretary of State for Justice and others [2013] 2 WLR 1157 clarifies (at para 13) that given the present stage of the development of the remedy of damages under section 8 of the HRA 1998:

"3….courts should be guided, primarily by any clear and consistent practice of the European court.

4. In particular, the quantum of awards under section 8 should broadly reflect the level of awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living…

6. Where it is established on a balance of probabilities that a violation of article 5(4) has resulted in the detention of a prisoner beyond the date when he would otherwise have been released, damages should ordinarily be awarded as compensation for the resultant detention.

7. The appropriate amount to be awarded in such circumstances will be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases."

52. Perhaps surprisingly, in the Bournewood case (HL v UK [2004] ECHR 471 ) which led to the drafting of the MCA DOLS provisions, the ECtHR awarded no financial damages for breach of HL's Art5(1) and 5(4) rights. The ECtHR held that non-pecuniary damages would only follow a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees of Article 5.

53. Neary v LB Hillingdon [2011] EWHC 1377 (CoP) represents one of the few Court of Protection cases heard in public (or with a published judgment) where damages were subsequently secured by the protected party for breach of his Art 5 rights. In that case Stephen Neary was wrongly kept away from his home and his father for almost a year, in circumstances where an application should have been made to the Court of Protection much sooner. The Court subsequently approved a damages award under HRA to Stephen Neary of £35,000 however this was also a compromise agreement approved by a judge of the Queen's Bench Division and counsel for Mrs D was not able to source any formal judgment setting out the reasoning for the approval.

53. In other HRA claims judicial awards have been made for Art 5(4) breaches in similar but not directly comparable cases. For example, where there was culpable delay in providing a number of psychiatric patients access to a MHRT to challenge their compulsory detention under the Mental Health Act, (See KB and others v MHRT [2003] EWHC 193 (Admin)). The maximum sum awarded in that series of claims (the case of JR) was £4,000 in circumstances where the breach of his Art 5 rights had been associated with a loss of liberty for 4 months.
54. In the court's view a settlement sum of £15,000 (as part of a total award to the marital couple of £27,500) does then fall within a reasonable range of sums, although it would be towards the lower end of the range if the damages sum paid in Neary was taken as a bench mark (rather than the high water mark).
55. The Official Solicitor wishes to accept the compromise that is offered without any admission of liability on the part of the Local Authority. In the present case the effect of the ongoing progressive deterioration in her cognitive functioning is such that Mrs D would now, sadly, be wholly unaware of any admission or judicial finding of the breach of her Convention rights. As such there is no advantage to her in achieving such a declaration and indeed it is positively disadvantageous to take any step that delays the actual payment of the award to her for any longer, given her significantly shortened life span.
56. For all of the above reasons therefore, the Court's view was that the totality of the compromise represented a reasonable settlement and in the circumstances represented sufficient satisfaction for the alleged breaches of rights, and as such it was approved.