SPONSOR SEGMENT - DoLS and the quest for damages

Thursday 12 March 2020

Deprivation of Liberty safeguards (DoLS) regime is due to be replaced by the Liberty Protection Safeguards.

The draft code of practice should be published for consultation this spring. It remains too early to predict what effect this will have on deprivation of liberty in a claims context, but we can look back on how DoLS has progressed in recent years to give us some clues.

Councils have always been subject to a wide-range of liability claims, not least claims for Convention violations under the Human Rights Act 1998 (HRA).

A specific type of HRA claim that has emerged in recent years relates to Article 5 of the Convention (right to liberty) and the deprivation of liberty safeguards (DoLS) that accompany the Mental Capacity Act 2005.

P v Cheshire West and Chester Council [2014]

The trigger for DoLS litigation was the Supreme Court’s decision in P v Cheshire West and Chester Council [2014]. It confirmed that people who lack the capacity to make decisions about their care and residence, and are subject to continuous supervision and control, are deprived of their liberty.

The judgment expanded the definition of a deprivation of liberty and, in turn, the number of care placements that required authorisations in order to be lawful.

Given that adult social care is a long-standing problem area for councils, and one that is widely regarded as chronically under-funded, the consequences of the decision were significant.

There was a backlog of care placements that required formal authorisation when this had not previously been the case. Fortunately, the anticipated spike in damages claims has not been pronounced. This is largely due to how the relevant law applies, specifically when it comes to the issue of assessing damages.

A deprivation of liberty can give rise to an Article 5 claim under the HRA and a claim for common law false imprisonment, which is an actionable tort.

Damages for false imprisonment can, in theory, be substantial. An unlawful and unnecessary deprivation of liberty is a significant matter, which can be reflected in any damages award.

However, crucially any award of damages will be nominal if it can be established that the deprivation of liberty would have happened in any event. For example, in a care setting, the person would have been in the same placement and with the same care arrangements had the deprivation received the relevant authorisation.

Bostridge v Oxleas NHS Trust [2015]

In a human rights context, the distinction is often looked at by distinguishing between a ‘substantive’ breach of Article 5 and a ‘technical’ breach. The principle of ‘nominal damages’ was confirmed by the Court of Appeal in the case of Bostridge v Oxleas NHS Trust [2015] In Bostridge, £1 was awarded.

It is important to remember when running the ‘Bostridge’ argument that the burden rests with the defendant to prove the technical breach did not impact on the deprivation of liberty both in itself and in terms of the restrictions of the care arrangements.

R (Hemmati & Ors) v Secretary of State for the Home Department [2019] UKSC 56

The legal principle was further affirmed in the recent Supreme Court case of R (Hemmati & Ors) v Secretary of State for the Home Department [2019] UKSC 56 in which the Court confirmed that: “a claimant will be awarded nominal damages if it is established the detention could have been effected lawfully under the existing legal and policy framework”.

Essex CC v RF and PN [2015] EWCOP 1

By way of contrast, substantive breach cases can result in significant damages. In Essex CC v RF and PN [2015] EWCOP 1, the Claimant was and elderly gentleman who was removed from his home against his wishes. He was awarded the sum of £60,000 in respect of an unlawful deprivation of liberty of 13 months. In Esegbona v King’s College [2019], an award of £15,470 was made for a four-month period of false imprisonment. 

Sarah Temperley, Principal Associate, Weightmans (sarah.temperley@weightmans.com

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