A recent case has shown the importance of having the Mental Capacity Act and the Deprivation of Liberty safeguards embedded into everyday practice, write the CoP team at 39 Essex Street.
The case of Milton Keynes Council v RR & Ors  EWCOP B19 (District Judge Mort) concerned an elderly lady with dementia who had been removed from her home by Milton Keynes Council in October 2012 following safeguarding concerns about her welfare, which included bruising to her face, over the previous few months.
RR was taken from her home, which she was said to have left ‘willingly’ and placed in a care home. Her son, SS, was not present at home at the time and was not told for another 19 days where his mother was.
There had been no safeguarding investigation into the concerns that had been raised. The council did not seek the court’s authorisation for the removal and placement in the care home. A standard authorisation was sought but not put in place for two weeks after removal.
The council applied to the Court of Protection 15 days after RR was removed from her home, and interim declarations were subsequently made in respect of RR’s continued residence at the care home. During the court proceedings, many allegations were made against SS, who denied them. The council subsequently decided not to pursue the allegations.
By this stage, it was some 16 months after RR had been removed from her home. The council then determined that it would not fund a package of care at home for RR, and that it would not provide direct payments to RR via SS. The proceedings were resolved by consent, with final declarations that RR lacked capacity to litigate, to decide where to live, and to make decisions about care and contact with others, and that it was in her best interests to reside at the care home and to have contact with SS, substantially in accordance with the general rules on visiting that the care home operated for all families.
District Judge Mort held that:
“23. The initial failure of MKC to investigate the safeguarding concerns was deplorable as was their failure to apply to the Court of Protection for authority to remove RR from her home. The 19 day delay in applying to the court compounds their failure as does their failure to advise SS of his mother’s whereabouts for the same period. Furthermore the safeguarding investigation was not completed until 12/9/13 with the result that contact between RR and her son was subject to restrictions for longer than was necessary. There can be no excuse for MKC’s initial failure to investigate the safeguarding alerts. The way they have dealt with this case has been woefully inadequate from the start. It has resulted in avoidable and unlawful interference in respect of RR’s Art. 5 right to liberty and security of person and her Art. 8 right to respect for her private and family life and her home. Those rights are not invalidated, nor are the unlawful interferences with those rights rendered any less serious by virtue of RR’s incapacity.”
Thus, a declaration was granted that RR was unlawfully deprived of her liberty when she was removed from her home, and until the standard authorisation was granted. There was also a breach of RR’s Article 8 rights consequent upon her removal from her home. The council was to send written apologies to RR and SS.
This case is another illustration of the failure to have embedded the MCA and the Deprivation of Liberty safeguards into everyday practice that was identified by the House of Lords Select Committee. It is surprising that in late 2012, a local authority was not aware of the need to obtain advance authorisation for the removal of an incapacitated adult from their home, and alarming that safeguarding incidents were not investigated swiftly (or at all) despite RR’s obvious vulnerability to harm.
The declarations and apology do not appear likely to have much meaning to RR, given her advanced cognitive impairment, but the Court’s decision on costs (yet to be handed down) and the naming of the council in this judgment may assist in reinforcing the need to pay attention to the requirements of the MCA.
This article was written by the Court of Protection team at 39 Essex Street.
Alex Ruck Keene did not contribute to the case comment, having had involvement with the case at one stage.