Dm (Claimant) Doncaster Metropolitan Borough Council (Defendant) Secretary of State for Health (First Interested Party) Fm (second Interested Party)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF |
| Judgment Date | 16 December 2011 |
| Neutral Citation | [2011] EWHC 3652 (Admin) |
| Docket Number | CO/5216/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 December 2011 |
[2011] EWHC 3652 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Leeds Combined Court Centre
Oxford Row
Leeds LS1 3BG
Mr Justice Langstaff
CO/5216/2011
Mr Mansfield QC & Mr Gearty (instructed by Switalskis LLP) appeared on behalf of the Claimant
Mr O'Brien (instructed by Doncaster Metropolice BC In House) appeared on behalf of the Defendant
Mr Coppell (instructed by Department of Work & Pensions) appeared on behalf of the First Interested Party
(As Approved)
The claimant has been married for 63 years to FM. As both have grown into their 80s, so ill health has affected them. FM has suffered mental deterioration. He now suffers from some dementia. After a distressing incident in December 2009 FM was taken first to a Police Station and then to a care home. His continued detention there is authorised by statute (the Mental Capacity Act 2005, as amended in 2007). His wife wants him to be able to return home, but he is not allowed to do so. This is said to be for his own good, and necessary to prevent harm befalling him. He has been charged for his accommodation there by DMBC, involuntary resident though he is. The money to pay has come not only from the limited income he has, but also from those savings built up by the couple in their earlier years. The question that arises in these proceedings is whether the charges are lawfully imposed – DMBC says it has no option, and is required by Act of Parliament to impose them. The Secretary of State supports that view. But DM, the claimant, argues that there is no right to make any such charge (and, it would follow, that the moneys her husband and she have paid already should be refunded.)
The Claim
The claimant argues that without legal authority to do so, her husband cannot be charged for his accommodation. Mr. Mansfield QC (who appears with Professor Conor Gearty for the claimant) submits on her behalf that there is none. He accepts that if FM was accommodated under the regime set up by the National Assistance Act 1948, which imposes a duty on local authorities to make arrangements to provide residential accommodation (to such extent as the Secretary of State shall direct) "..for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them" then s.22 would require that the authority made a charge for that accommodation.
S.22 is headed "Charges to be made for accommodation". Sub-section (1) is in these terms:
"(1) Subject to section 26 of this Act, where a person is provided with accommodation under this Part of this Act the local authority providing the accommodation shall recover from him the amount of the payment which he is liable to make in accordance with the following provisions of this section."
Whether those provisions as to the precise charge to be levied were applied properly in this case is no longer in issue, having been resolved by agreement during the course of the hearing before me.
Mr. Mansfield QC argues however that this provision requiring the local authority to levy a charge does not apply. This is because the duty to accommodate does not (he says) arise under s. 21, but under the provisions of the Mental Capacity Act 2005. This Act either provides upon a plain application or interpretation of its wording for a duty to be placed on local authorities to provide accommodation for someone in the position of FM when he was first taken to Castle Garth Care Home (additional force for this approach being gained by considering those human rights of FM which would be infringed if it was not) or the natural and ordinary meaning of the relevant statutory provisions ought to yield to the interpretation suggested by considering those rights.
He draws attention to s. 21(8) of the 1948 Act which provides
"Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 2006…"
The regime set up by the Mental Capacity Act 2005 is such a provision, says Mr. Mansfield QC. He argues that it contains a duty obliging a local authority to accommodate someone such as FM. If it does, then it is common ground between him and both Mr. Coppel (who appears for the Secretary of State, as First Interested Party) and Mr. O'Brien (who appears for the Defendant, but who by agreement between counsel made his submissions after the court had heard from Mr. Coppel) that there would be no power to charge. It would follow that the charges already recovered had been unlawfully imposed.
Similarly, Mr. Mansfield agrees that if FM was accommodated under s.21 National Assistance Act, then s.22 obliges the local authority to charge him for that accommodation, and subject only to points relating to computation of the charge, the Defendant and Secretary of State are entitled to succeed.
The central issue thus is one whether the Mental Capacity Act 2005 imposes a duty on a local authority to accommodate a person such as FM whose detention in a care home is authorised by its provisions.
The material provisions of the Mental Capacity Act 2005 provide:
"4A Restriction on deprivation of liberty
(1) This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.
(2) But that is subject to—
(a) the following provisions of this section, and
(b) section 4B.
(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.
(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.
(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty)."
IshallconsidertheprovisionsofScheduleA1later.
" 5 Acts in connection with care or treatment
(1) If a person ("D") does an act in connection with the care or treatment of another person ("P"), the act is one to which this section applies if—
(a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and
(b) when doing the act, D reasonably believes—
(i) that P lacks capacity in relation to the matter, and
(ii) that it will be in P's best interests for the act to be done.
(2) D does not incur any liability in relation to the act that he would not have incurred if P—
(a) had had capacity to consent in relation to the matter, and
(b) had consented to D's doing the act.
(3) Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.
(4) ….."
" 6 Section 5 acts: limitations
(1) If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied.
(2) The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P.
(3) The second is that the act is a proportionate response to—
(a) the likelihood of P's suffering harm, and
(b) the seriousness of that harm.
(4) For the purposes of this section D restrains P if he—
(a) uses, or threatens to use, force to secure the doing of an act which P resists, or
(b) restricts P's liberty of movement, whether or not P resists.
(5) …(the following subsections are not material)"
Although section 8 appears to provide that where D incurs expenditure which he reasonably believes to be in P's best interests, he is entitled to be indemnified for it, no party founded any submissions on it. However, this section indicates a policy that actions taken in respect of a patient by reference to the Mental Capacity Act should not be provided at the expense of any public authority, and to this extent might be thought to be against the claimant. Since I have received no detailed submissions I have not decided the case on this basis: but mention the point in case it should be of future relevance to anyone who reads this judgment.
Schedule A1, to which section 4A (5) refers, is entitled "Hospital and Care Home Residents: Deprivation of Liberty". The structure of this is significant. It is in a number of Parts. The first contains the provisions Mr. Mansfield QC submitted were central to the Schedule: this is headed "Authorisation to Deprive Residents of Liberty Etc". It thus explicitly focuses on the grant of permission to detain a person compulsorily. Paragraph 2 empowers the "managing authority" of a care home to detain someone if the conditions in paragraph 1 are met – which (summarising) are that he is at the care home, detained so as to deprive him of his liberty, and that a "standard authorisation" is in force in relation to him and the care home in which he is detained.
The focus of these paragraphs is thus (as Mr. Coppel and Mr. O'Brien submit) to ensure that the "managing authority" is thus free of liability for the detention of the patient concerned, provided that there is a standard authorisation in force.
A standard authorisation must be sought by the managing authority of the care home, from the "supervising body". This is the local authority concerned, in this case Doncaster. The managing authority has a...
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