Free to leave

Deprivation of liberty

Following the hugely important Supreme Court decision in P v Cheshire West and Chester Council [2014] UKSC 19 (discussed in SJ 158/33), the world of deprivation of liberty was thrown into confusion by the decision of Mostyn J in Rochdale Council v KW [2014] EWCOP45, in which the court considered the care arrangements put in place for K in her own home.

K was severely mentally incapacitated, as well as having physical disabilities. She was able to walk with a Zimmer frame, but this ability was declining. She received state-funded 24-hour care.

For a person to be deprived of their liberty, they must be confined for an appreciable period of time, to which they have not consented, and for which the state is responsible. Further, following Cheshire West, the acid test is whether the person is under continuous supervision and control, and is not free to leave.

Mostyn J made it clear that although he did not agree with the majority decision of the Supreme Court in Cheshire West, he was bound by it. However, he then considered the meaning of 'free to leave'. He stated that this did not mean just wandering out of the front door, but rather removing oneself permanently from one place in order to live in another place of one's choosing. He then considered the fact that K would soon not physically be able to do either of these things. In contrast, MIG (in Cheshire West) did have the physical capacity to leave her home, but if she had tried to do so, she would have been stopped. The fact that K was not physically or mentally capable of exercising her freedom to leave meant that she could not be considered as not being free to leave.

The judge emphasised that he was not saying it was impossible for anyone living in their own home to be deprived of their liberty. However, he thought that most cases, like K's, would involve a severely physically and mentally disabled person who happened to be cared for at home under arrangements made by the state, and in these circumstances article 5 of the European Convention of Human Rights (ECHR) would not be engaged.

However, in February 2015, K's appeal to the Court of Appeal was allowed by consent, with the result that Mostyn J's comments regarding the meaning of 'free to leave' should probably now be treated with caution.

Compensation awarded

A useful case which provides guidance as to the level of compensation which will be awarded in cases of deprivation of liberty was heard in early January 2015, namely Essex County Council v RF [2015] EWCOP1.

CP was 91 years old and suffered from dementia. CP's friends and family were in dispute as to where he should live. A social worker, who had conducted a capacity assessment and subsequently concluded CP lacked capacity, removed him from his home of 50 years to a secure dementia unit. The circumstances of the removal were disputed, with the council claiming that he left voluntarily, despite substantial evidence of CP's distress and reluctance to leave his home.

An urgent deprivation of liberty safeguards (DOLS) authorisation was not put in place until eight weeks later, and a standard authorisation was not put in place until a week after that; furthermore, it was not renewed when it expired 16 weeks later.

After a year had passed, all parties accepted that CP lacked capacity to make decisions regarding his residence and care. The council then accepted an independent specialist's report that it was in CP's best interests to return home with a 24-hour care package, and the court made interim declarations accordingly.

The parties then reached a compromise agreement in respect of the damages to be awarded to CP for the breach of his right to liberty and his right to respect for private and family life. The court was required to consider the agreement and approve it if appropriate. The terms of the agreement included, inter alia, a provision that the council would pay damages of £60,000 to CP.

The council's omissions amounted to a substantive breach of CP's rights. Taking into account the cases of London Borough of Hillingdon v Neary [2011] EWHC 3522 and The Local Authority and Mrs D [2013] EWCOP B34, the level of damages for unlawful deprivation of liberty was between £3,000 and £4,000 per month. The compromise agreement placed the level of damages at between £3,500 and £4,600 per month, and, in the circumstances, the judge approved the compromise agreement.

Revocation of LPAs

There have been a number of cases recently regarding applications by the Office of the Public Guardian (OPG) for the revocation of lasting powers of attorney (LPAs), citing the failure of an attorney to comply with one or more of their duties.

In Re VH v Public Guardian [2014] EWCOP 15, the donor (V) appointed her son (D) as her attorney. V owned a bungalow worth around £178,000 and had less than £1,000 in savings.

D decided that his V, who was becoming increasingly frail and forgetful, would move to live with him and his partner (G). A loan was obtained for £72,000, secured against V's bungalow, so that it could be renovated and then let out to generate an income. However, D and G separated shortly thereafter and V decided she wanted to remain in her own bungalow.

The OPG was then alerted to the fact that D had spent almost the entire loan on renovating G's property. The OPG applied for an order for the revocation and cancellation of the LPA.

D appeared to change his story several times regarding the money raised on his mother's house, initially indicating that it was a loan to him but later stating categorically that it was an outright gift.

The court said that V would need the same capacity as required for making a will in order to have made the gift herself (see Re Beaney [1978] 2 All ER 595). V needed to know she was giving away £72,000 and, most importantly, entering into a mortgage with an obligation to pay instalments, and that the purpose for which the loan was originally raised was quite different from the purpose for which the money was actually used.

The judge commented that it was 'reprehensible' of D to have placed his mother in such a precarious position. The LPA would be revoked.

In the case of RG v PB [2015] EWCOP 2, the LPA was partially revoked on the basis of the attorney (PB) being, in the words of the judge, a 'hopeless' financial attorney, notwithstanding that he was an affectionate and attentive stepson and had provided the donor (RG) with personal care over a number of years.

The court had previously ordered PB to engage an accountant to produce accounts, following concerns raised by JW, PB's sister and co-attorney. PB failed to comply with the terms of the order, resulting in the court revoking his appointment as attorney, leaving his sister as the sole attorney. On PB's application to the court for the order to be reconsidered, SJ Lush upheld the order, despite his misgivings as to the wisdom of the sister acting as sole attorney, on the basis that this solution was a less restrictive alternative to the appointment of a deputy, it respected the wishes of RG, and there was no evidence to suggest that JW would not act in accordance with RG's interests.

Gratuitous care

The issue of attorneys providing gratuitous care to the donor also arose in Public Guardian v AW [2014] EWCOP 28, which provides guidance as to the manner in which attorneys should approach the issue.

OB appointed her daughters (AW and DH) as her property and finances attorneys. OB's health began to decline, and she moved from her own home to live with AW.

The principal issue regarding AW's management of her mother's finances concerned the use by AW of around £180,000 of OB's money to make renovations to her own home. AW had given up her job as a nurse in order to care for OB and she would not have had the funds herself to carry out the renovations.

SJ Lush pointed out that there was clearly a conflict between the interests of the donor and the interests of the attorney, and for this reason AW should have made an application to the court for approval of the expenditure. SJ Lush explained that the court would have been happy to have awarded AW an appropriate allowance for the gratuitous care she was providing to OW.

This case demonstrates that attorneys should be alive to the fact that they are in a fiduciary position as regards the donor of a power of attorney, and should ensure that the appropriate applications are made to the court where a conflict of interest arises between them.

Karen Bayley is a solicitor at Barlow Robbins and leads the Court of Protection department @barlowrobbins