The costs consequences of setting a juggernaut in motion

The consequences of a failure properly to comply with the provisions of the MCA in the safeguarding context have been highlighted in Milton Keynes Council v RR & Ors (Costs Judgment), the sequel to a singularly unfortunate case described in the Thirty Nine Essex Street’s Mental Capacity Law Newsletter here, involving the unlawful removal of an elderly lady from her home and a failure timeously to investigate and (ultimately) to withdraw allegations against her son and her son’s partner.

In departing from the general rules applicable to costs in personal welfare proceedings and awarding the son the entirety of his costs, District Judge Mort did not mince his words.  He considered initial failures to investigate safeguarding alerts to be “deplorable,” the process of removal and the absence of any lawful basis for the same to be “[as] lamentable and inexcusable set of circumstances [as can be imagined],” and was critical of the failure of the Council subsequently to investigate the safeguarding allegations underpinning their tardy application to the CoP before the Council “surprisingly” abandoned them.   In conclusion, he held:

36. MKC had set a juggernaut in motion by their initial failure to investigate the safeguarding alerts and their decision to remove P from her home in circumstances which were unlawful. This case concerned the very sad and tragic consequences for P which flowed from that decision.

37. I have no difficulty in concluding that MKC’s practice in this case was substandard. It is P’s misfortune to have been the victim of that substandard practice. MKC’s acts and omissions have detrimentally affected both P and her family and changed the course of their lives.

38. In my judgment an award of costs is manifestly justified. I have considered whether a partial costs order is appropriate but have come to the conclusion that this is an exceptional case in which a full costs order is justified.”

The difficulties of responding to safeguarding alerts in the context of adults who lack capacity to take their own decisions are grave; it is, though, of cardinal importance to remember (a) that ‘safeguarding’ provides no additional legal basis upon which actions can be taken by public authorities to intervene in their lives; and (b) the Court of Protection is a court, and ‘safeguarding’ applications to the CoP must be brought after as full and rigorous investigation of whether the allegations underpinning such applications can be made out as is possible in the time available.  It is not surprising that a combination of a failure to bring matters to the CoP in advance of removal and then a failure to analyse timeously and rigorously the basis upon which that removal was said to be justified warranted the costs award made in this case.

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