Related Sector: Health & Social Care
The London Borough of Haringey v Emile (2020) MHLO (CC) case involved a contested determination of damages for deprivation of liberty in the context of the Deprivation of Liberty Safeguards in the County Court.
The local authority placed Ms Emile in a care home in 2008 due to concerns around her welfare in the community which she was unable to consent to due to her lack of capacity. The local authority did not take steps to authorise her deprivation of liberty in the care home once the deprivation of liberty safeguards were introduced in April 2009. Ms Emile remained in the care home until 2016 when she was moved to a nursing home, her condition having deteriorated. An authorisation under the deprivation of liberty safeguards was applied for at that point.
Ms Emile’s care home fees were not paid between 2013 and 2017. The local authority made a claim for unpaid care home fees. Ms Emile counterclaimed by her litigation friend for wrongful detention. The local authority’s argument in response to that was, even if she lacked the capacity to consent to the accommodation and had been wrongfully detained, the failure to undertake the correct processes to authorise her detention was “only a technical breach” and only nominal damages should be paid as no harm had occurred.
The District Judge did not agree and held it was not a case for nominal damages and whilst he allowed the local authority’s claim for unpaid care home fees, he awarded Ms Emile the sum of £130,000 on the counterclaim for damages for unlawful detention plus 10% uplift totalling £143,000.
The local authority appealed. On appeal the Judge found that less restrictive options had not been fully considered by the local authority before placing Ms Emile in the care home, he found that care home residence was not inevitable. The Judge also found that the local authorities failure to comply with the Mental Capacity Act 2005 Schedule A1 was substantial and had caused harm and that the local authority failure was more than a “technical breach”.
Quantum of Damages
The amount of damages awarded was hotly disputed by the local authority but the Appeal judge felt that "[t]he District Judge was not only entitled, but obliged, to take into account the fact that as a result of the local authority’s failures the Defendant’s freedom was unlawfully compromised for the greater part of the last decade of her life where less intrusive options of accommodation and care should have been considered. The good intentions and benign motives of the local authority are scant consolation to the person deprived of their liberty.”
The Judge made specific comment about the local authority’s argument around backlogs and resources with this comment “the fact that the local authority perceives itself to be beleaguered by what it may see as the shifting sands of guidance and continuing changes in emphasis regarding their legal obligations under DoLS standards with significant impact on its resources, these factors do not disclose any error of law or principle on the part of the District Judge and are not grounds for reducing any damages awarded.”
This case is a very important reminder that detention without authorisation carries not only an emotional cost to the person and a financial cost to the public authority, but has huge reputational damage for the authority concerned.
The role of a Best Interest Assessor is such an important one.
Who knows what would have happened if a Best Interest Assessor had visited.
- Yes they would no doubt have found her to be deprived of her liberty, but would they have felt that the placement was in her best interests?
- Perhaps they would have insisted on exploring if all available options had been considered?
- Perhaps they would have identified a less restrictive option at home should be tried first before a care home placement?
- Perhaps they would have concluded that the care home placement was neither necessary nor proportionate.
- Perhaps even if the BIA had recommended an authorisation for a short period of time to consider less restrictive options, Ms Emile would have had the benefit of her rights to an RPR, perhaps her family member with the help of a s39D IMCA, to a Part 8 review and very importantly, to a s21A appeal to the Court of Protection with the benefit of legal aid
- Who knows what would have happened if a Section 21A Appeal had been issued ?
- Perhaps Ms Emile could have had the benefit of living in her own home for a little bit longer with domiciliary care?
- Perhaps Ms Emile could have spent more time with her husband and her family
- Perhaps all her money would have had to have been spent on care home fees
Perhaps we should ensure that we respect the human rights of all those affected by these decisions by the lawful and fair application of the Mental Capacity Act 2005.
Author: Sue Inker, Lawyer and Subject Matter Expert in DoLS
This article was first published on Monday 15th March 2021.
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Esther Boama - Community Psychiatric Nurse
20 Mar 2021 13:22
The Local Authority either operated in ignorance that Emile was placed in the Care Home prior to the introduction of DoLS she was therefore not covered by the law. I think it is important that care and residential homes management work with BIA staff to review the social care needs of their clients annually.
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