the mental capacity act and DoLS
The cost of getting it wrong
8 August 2011
In the long running Deprivation of Liberty case of Manchester City
Council v G, E & F, Manchester City Council was “named and
shamed” for removing a young man from his foster family, and
putting him into a supported living arrangement without lawful
authority. Last week, the Court of Appeal held that the council
should pay a proportion of the family’s costs from the Court of
Protection proceedings.
The case
E is 20 and suffers from severe learning difficulties. It was
not really disputed that he lacked the capacity to manage his own
affairs and in particular, choose where to live and with whom.
E had been placed with F when he was four or five and had lived
with her throughout his childhood, and so it was clear that F was
of considerable importance in his life.
In April 2009, Manchester City Council removed E from F’s care
and placed him in a residential unit, and then a second one in June
2009. F was not involved in the decision making process, nor was
she allowed to see E until December 2009. Since his removal from
F’s care, E’s behaviour deteriorated to the extent that medication
was required.
In November 2009, G (E’s sister, with whom he had considerable
contact) filed an application in the Court of Protection.
At the subsequent hearing, Mr Justice Baker held that:
- E lacked the capacity to make a decision as to where to
live
- Manchester City Council wrongfully deprived E of his liberty
and so infringed his Article 5 rights
- Manchester City Council also breached E’s Article 8 rights
(private and family life).
Mr Justice Baker felt that the council’s conduct was so poor
that not only should they be named and shamed (the usual practice
being to keep the name of public bodies anonymous as well as the
individuals involved) but also ordered that they pay a proportion
of the costs of G, E and F. The local authority appealed against
the costs order.
Costs in the Court of Protection - what usually
happens?
Court of Protection proceedings are not necessarily about
winners or losers but rather about the welfare of people who lack
capacity. It is right that such proceedings have to be dealt with
openly and without fear of sanction. Individuals or public
authorities should therefore be free to bring matters before the
court without fear of being penalised in costs.
However, rule 159 states that the court can depart from the
general rule “if the circumstances so justify”. When
considering this, the court will look at:
- the conduct of the parties
- whether a party has succeeded on part of his case (even if not
wholly successful)
- the role of any public body
Conduct includes behaviour before as well as during the
proceedings, the reasonableness of issues raised by that party and
how that party has responded to the application.
So what was different in this case?
In his original judgment, Mr Justice Baker said that the local
authority showed a “blatant disregard of the processes of the
MCA and their obligation to respect E’s rights under the ECHR”
and as such, their conduct justified a departure from the general
rule.
The Court of Appeal agreed with this, and with Mr Justice
Baker’s dismissal of the argument that a costs order should not be
made as the legislation was complex and relatively new.
What can we learn from this?
This finding, hot on the heels of
Neary v London Borough of Hillingdon, is yet another
warning shot across the bows of public bodies that they have to get
it right or possibly face public censure and/or costs
sanctions.
Potentially worrying is the Court of Appeal’s endorsement of Mr
Justice Baker’s comments that “it is only local authorities who
break the law, or who are guilty of misconduct that falls within
the meaning of rule 159, that have reason to fear a costs
order.” This raises the possibility that whenever there is an
unlawful deprivation of liberty, a costs order could follow.
It is fair to say that the emphasis was on the fact that parties
should be free to bring matters before the Court of Protection
without fear of costs sanction, but if there is unreasonable delay
or worse, misconduct, the court will not hesitate to depart from
the general rule and make a costs order.
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statements of the law. It does not constitute legal advice and does
not provide a substitute for it.