District Judge Mort has approved a damages settlement in another troubling case involving the wrongful removal and detention of a vulnerable adult. Essex County Council v RF and others concerned P, a man of 91 with dementia, who was removed from his home of 50 years and kept in a locked dementia unit for over a year, against his will, with no consideration given to any less restrictive alternative or indeed to the possibility that he might have capacity to make decisions about his evidence himself.
The brief judgment merits reading in full as a worrying catalogue of disregard of the principles and process of the Mental Capacity Act. The judge summarised these as follows:
• To heed the presumption in favour of his capacity
• To adopt the course of action which was less restrictive of P’s rights and freedom of action.
• To have regard the independent evidence of P’s capacity by either ignoring it or immediately countermanding it
• To take seriously or act upon his consistently expressed wish to return home
• To appoint an IMCA for him
• To refer the matter to the court
These were substantive and not technical breaches. Fortunately after 17 months the local authority agreed to support P’s return home and he has now moved back home. Although the COPRs do not themselves provide for approval of damages, the judge was able to so under the Civil Procedure Rules. He reviewed the level of damages in known cases and concluded that this suggested a level of between £3000 and £4000 per month. ECC agreed to pay P’s costs, to waive the care home fees and, importantly, to disregard the damages when assessing P’s liability to contribute to his care costs.