LB Haringey v Emile  MHLO (CC) is a rare example of a contested determination of damages for deprivation of liberty in the context of DoLS. It arose out of a claim by the local authority for unpaid care home fees in respect of Ms Emile, who was placed in a care home by it in 2008 in the context of concerns about her welfare. The local authority took no steps to authorise the deprivation of liberty at that time or at the point when her placement was made permanent in 2010. She remained there until 2016 when she was moved to a nursing home, her condition having deteriorated; a DoLS authorisation was obtained at that point. Care home fees remained outstanding between 2013 and 2017. Ms Emile counterclaimed (by her litigation friend) for wrongful detention on the basis that, as she had lacked capacity to make decisions as to her residence, and the local authority required authority to take the steps which had done; as it had not sought that authority, it had no authority to detain her. Importantly, the local authority’s argument in response was that, even if she had lacked capacity and been wrongfully detained, the failure to undertake the correct processes to authorise her detention was only a technical breach of the appropriate safeguards and protocols and proper authorisation would have inevitably followed had the local authority appreciated her lack of relevant capacity in 2008. The local authority contended, therefore, that this was a case for only nominal damages.
At first instance, the District Judge held that this was not a case for nominal damages. Whilst he allowed the local authority’s claim for unpaid care home fees, he awarded Ms Emile the sum of £130,000 on the counterclaim for damages for unlawful detention for the entire period claimed plus a 10% uplift based on Simmons v Castle, amounting to £143,000.00. The local authority appealed on the basis that (1) the District Judge was wrong to find that this was a case for nominal damages and (2) the award of damages was excessive (other grounds of appeal related to interest and costs, which are less relevant here).
On appeal HHJ Saggerson identified that it was clear that the District Judge had found that there were options short of (or other than) residential care, so the District Judge found, on the basis of the family’s evidence that he accepted, that were not fully considered by the local authority. He decided that this all derived from the fact that the local authority thought that Ms Emile had capacity to make her own residential decisions rather than a conscientious consideration of less intrusive options including family options. HHJ Saggerson found that the District Judge was entitled to bear in mind that the personal reflections of Ms Emile tended to depend on who she was talking to as he was entitled to have in mind her historical preference not to be consigned to a care home.
This was the foundation of the District Judge’s conclusion that this was not a case for nominal damages:
20 […]. He was plainly satisfied on the facts that care home 9 residence was not inevitable despite the Defendant’s difficult and deteriorating condition and the complications presented by a struggling husband up to 2013. He was entitled so to conclude particularly as the burden of demonstrating that care home residence was inevitable (from whatever date) was on the local authority. The reality was that the Defendant’s position was not reviewed at all between 2010 and 2016. The District Judge obviously considered this to be a further significant failure on the part of the local authority. So it was.
21. The District Judge was entitled to conclude that the local authority’s failure to comply with the Mental Capacity Act 2005 particularly with regard to the best interests provisions of Schedule A1 were substantial and causative of harm. He was entitled to conclude as he plainly did that the local authority had not proved that it was inevitable that the Defendant’s care would have been the same had the statutory framework been properly deployed in 2008 or at any other time before August 2016 and that it was speculative to proceed on the basis of what the Court of Protection might or might not have done had a challenge been initiated. He was entitled to proceed on the basis that the local authority’s failures were more than merely technical ones.
Turning to the quantum of damages, HHJ Saggerson identified that the question of whether the award “so far off the wall or was based on inappropriate considerations such as to warrant reassessment” (paragraph 23). The Circuit Judge noted (at paragraph 24) that:
The District Judge did not apply a tariff. He did not award monthly damages and in doing so fail to taper the award. All he did was to try and maintain his bearings by a broad comparison with cases such as Neary with appropriate adjustments. He awarded a single lump sum covering a very long period of time, implicitly recognising that over such a long period of time there would be ebbs and flows with regard to the harmful impact on [Ms Emile] within that period.
HHJ Saggerson held that it was:
24 […] impossible to criticise the District Judge for concluding that such a long period of time is likely to yield a significant sum of money in compensation once he had decided that it was not a nominal damages case. I do not consider that the “lump sum” approach is open to challenge in principle. I doubt that the District Judge considered that in adopting this approach there was any risk that others might crudely divide his total by 94 equal months in a forlorn attempt to find some sort precedent or benchmark.
In an important passage, HHJ Saggerson observed at paragraph 25:
In assessing the damages the District Judge was entitled to bear in mind that for nearly 8 years the local authority had been unwittingly officious and had overridden properly formulated considerations of the Defendant’s best interests and the potential this yielded for trespassing on her freedom of movement more than was essential in the light of family or other supported residential options that could have been considered short of consigning her to a care home. He was entitled to bear in mind that historically the Defendant had expressed a firm preference not to live in a residential home and that for 6 years the local authority had not properly reviewed the Defendant’s status; neither had the position been properly reviewed after the death of her husband in 2013. Any award would also have to take into account, as did the District Judge, the fact that in her declining years the Defendant was unlawfully subject to routine direction by residential staff, had her daily life and visits subjected to a formal regime and contact with family subjected to official approval (however benign), or at least there was a greater degree of control than the family’s evidence would have warranted. These are all real consequences of a confinement albeit falling short of being locked down or physically restrained.
At paragraph 28, HHJ Saggerson observed that, if “[i]f the submission was that the damages awarded were very generous; on the high side or even at the very top end of the permissible range for this sort of ‘benign’ confinement I would be inclined to agree.” But that was not the test on appeal, and the award was not so disproportionate to the harm suffered by Ms Emile. as to warrant its being set aside: “[t]he District Judge was not only entitled, but obliged, to take into account the fact that as a result of the local authority’s failures the Defendant’s freedom was unlawfully compromised for the greater part of the last decade of her life where less intrusive options of accommodation and care should have been considered. The good intentions and benign motives of the local authority are scant consolation to the person deprived of their liberty.”
HHJ Saggerson made the important observation that comparison with personal injury damages (which the local authority sought to draw to identify that the damages award had been excessive) were necessarily inexact:
30. […] Comparisons with personal injury damages are only likely to be of some assistance in those cases where there has been short term incarceration where the shock element of the immediate loss of freedom is of particular importance and comparable to small personal injury claims for anxiety and distress. In addition the District Judge was entitled to bear in mind, as he obviously did, that limits on a citizen’s freedom of movement in circumstances that are not lawful, warrant appropriately substantial damages.
At paragraph 31, addressing an argument that many local authority readers may have in their minds, HHJ Saggerson identified that:
the fact that the local authority perceives itself to be beleaguered by what it may see as the shifting sands of guidance and continuing changes in emphasis regarding their legal obligations under 13 DoLS standards with significant impact on its resources, these factors do not disclose any error of law or principle on the part of the District Judge and are not grounds for reducing any damages awarded.
Interestingly, the case was framed on the basis of unlawful detention – i.e. the common law tort. It was common ground, HHJ Saggerson identified, that “Article 5 adds nothing in relation to the quantum of damages in the event that substantial damages are awarded. The point, therefore, does not fall for consideration in the present appeal” (paragraph 34).
This case, coincidentally, came onto my radar at the same time as the LGO’s decision into complaint against Cheshire East Council (19 010 786) where the local authority supervisory body failed to provide a DoLS authorisation for the first 11 months the complainant’s father was in a care home. The Ombudsman found that the Council was at fault for not processing the (timely) DoLS authorisation applied for by the care home for 11 months, but that this fault “did not cause Mr Y injustice. During the period of delay Mr Y was cared for in an appropriate environment and several best interest decisions confirmed it was in his best interests to stay at the Care Home, despite no DoLS authorisation being in place. I do not consider the fault caused Mr Y to lose the opportunity to be cared for at home or in a different care home” (paragraph 50). However, the Ombudsman identified that:
56. As it seemed that the DoLS application for Mr Y may have been delayed significantly, I considered this might be a wider issue and that the Council’s handling of DoLS applications may have caused injustice to other members of the public. I used our powers under Section 26D of the Local Government Act 1974 to look wider than just Mr X’s complaint.
Having obtained evidence from the Council about its triage policy for DoLS, the Ombudsman found that:
58. The Mental Capacity (Amendment) Act 2019 provides for the repeal of the DoLS and their replacement with a new system called the Liberty Protection Safeguards (LPS). The Act will not be implemented fully until 2022. Meanwhile, the current DoLS are the main legal protection available to vulnerable people deprived of their liberty in care home settings.
59. Having such a backlog of DoLS applications awaiting assessment means the Council is at fault. For each case in the backlog, the Council is failing to comply with the Mental Capacity Act 2005 and DoLS Code of Practice. Without an authorisation in place, the people that are the subject of these applications are being unlawfully deprived of their liberty.
60. Applying the process properly may not have changed the outcome for many of the people affected, other than confirming that it is in their best interests to be deprived of liberty. However, it is possible some of the people stuck in the backlog should never have been deprived of their liberty or there may have been less restrictive options available to meet their needs.
The judgment in the Emile case is an important reminder that detention without authority carries both an emotional cost for the person and can carry a real financial cost for the body which is responsible for the arrangements. That body will not be the local authority supervisory body in a DoLS case, unless the local authority is also the body which has taken the steps in question to confine the person. Conversely, it could equally be a CCG arranging care which gives rise to a confinement of a person receiving CHC-funded care in a care or nursing home, or in their own home. In any such case, and in line with Lumba (in the Supreme Court) and Bostridge (in the Court of Appeal), and as the, the burden of proof will not lie with the person who has been detained to show that the actions/omissions of the public authority led to loss. Rather, the burden then lies with the public authority to establish that they made no difference. Otherwise, “the result would be to transform the tort of false imprisonment from being one actionable without proof of damage into one in which the claimant, in a large number of cases, would have to prove loss. [such an approach is] incompatible with the approach of the Supreme Court in Lumba. If the [public body] wishes to say that a claimant would have been detained anyway, [they] must establish that proposition” R(EO & Ors) v SSHD  EWHC 1236 (Admin) per Burnett J at paragraph 74.
It should, finally, be noted that it is not in all cases that there will be a complete identity between a wrongful detention claim and a claim for breach of Article 5 ECHR. The two concepts are not identical, and there may be situations – in particular, those where (unlike here) the person is unaware that they are confined, and do not seek to express any desire to leave – where it may not be entirely easy to establish that they are falsely imprisoned at common law, even if for purposes of Article 5 ECHR they are clearly deprived of their liberty. It is entirely possible, therefore, that a self-funder in a private care home/hospital may well have no recourse against the care home/hospital which does not seek a DOLS. If they do not meet the rather tighter test for false imprisonment, they could not bring a claim for deprivation of liberty under the HRA 1998 against the care home/private hospital. As the Law Commission identified in its Mental Capacity and Deprivation of Liberty report, it is not obvious why this gap in protection is justified – its attempts to solve the gap by statutory means were not taken forward in the Mental Capacity (Amendment) Act 2019, so it will remain for the courts to craft a solution by (we suggest) bringing the common law concept of ‘imprisonment’ into alignment with the Article 5 concept of ‘confinement’.
 Note, this case does not appear on Bailii. It comes via the Mental Health Law Online website, and we understand, in turn that it was provided by Leonie Hirst, Counsel for Ms Emile.