Details of a case heard in April by the Court of Protection relating to the removal of an elderly woman from her house into a care home have recently been reported. District Judge Mort described the handling of the matter by the local authority in question as 'woefully inadequate’.
The case known as Milton Keynes v RR and Ors  EWCOP B19 concerned an 81 year old woman with dementia who was deprived of her liberty and of her right to family life after the local authority moved her to a care home following improperly investigated allegations of neglect.
The woman known as RR, a former magistrate who was described by a friend as 'a very independent woman', was removed from her home following allegations of neglect by her son who cared for her in her failing health. However, the local authority failed to carry out a proper investigation of the allegation for a number of months.
Confirmation was then received that the council would not be pursuing the allegations some 16 months after RR was removed from her home. Visiting restrictions were also placed on her son, known as SS.
RR was originally diagnosed with vascular dementia in 2007 which was deemed to have become severe in 2012 when she was deemed at that time to lack capacity to deal with her own finances, residence and care needs.
Following this, RR was removed from her home when her son was not present following safeguarding alerts for unexplained injuries. Given her condition, RR was not able to explain where she had sustained her injuries. These alerts were not followed up or properly investigated by the local authority’s safe-guarding team.
SS was not told of his mother's whereabouts for 19 days following her removal and even then this was only by way of a solicitor's letter. Contact with his mother was also restricted for an extended period.
The local authority did not make an application to the Court of Protection for this deprivation of RR's liberty until a couple of weeks after she was removed from her home. By the time the matter was heard in April 2014 (some two years after RR's initial removal) her health had deteriorated to the point that it was not in RR's best interests to return home.
Judge Mort stated within his judgment: “The initial failure of Milton Keynes Council 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 12/09/13 with the result that contact between RR and her son was subject to restrictions for longer than was necessary.”
It has been reported that SS was 'flabbergasted' to find his mother taken into care and Judge Mort remarked that it was clear that SS was 'devoted to his mother'.
Article 5 of the European Convention on Human Rights provides for the right to liberty and security. Should a public body wish to deprive someone of his or her liberty, this must be done lawfully. Within a care home or hospital setting, the local authority is able to apply for and obtain authorisation under the Deprivation of Liberty Safeguards contained in the Mental Capacity Act 2005. Alternatively, application must be made to the Court of Protection to obtain authorisation from the Court.
The local authority in this case failed to obtain authorisation for the removal of RR. As a result of the failings they were held to have breached RR's Article 5 right to liberty and Article 8 right to family life.
The case highlights the importance of local authorities approaching the Court of Protection where a dispute arises about what is in the best interests of someone who is deemed to lack capacity.
By Emma McClure & Sophie Maloney, Civil Liberties and Court of Protection
If you are concerned that a family member or loved one is being deprived of his or her liberty, then we are able to provide specialist advice, guidance and representation through this process. Call us on 0333 344 4772.