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21.19Unlike patients detained under the Mental Health Act 1983 (MHA 1983), those detained under DOLS do not have their case referred automatically to the court. Instead an application under section 21A must be made and MCA 2005 s21A gives the court powers to terminate or vary an authorisation if an application is made. It is important to be aware of the extent of the jurisdiction of s21A. The section is set out in full below and a flow chart setting out the process for applications under section 21A is set out overleaf.
21A(1) This section applies if either of the following has been given under Schedule A1–
(a)a standard authorisation;
(b)an urgent authorisation.
(2)Where a standard authorisation has been given, the court may determine any question relating to any of the following matters–
(a)whether the relevant person meets one or more of the qualifying requirements;
(b)the period during which the standard authorisation is to be in force;
(c)the purpose for which the standard authorisation is given;
(d)the conditions subject to which the standard authorisation is given.
(3)If the court determines any question under subsection (2), the court may make an order–
(a)varying or terminating the standard authorisation, or
(b)directing the supervisory body to vary or terminate the standard authorisation.
(4)Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters–
(a)whether the urgent authorisation should have been given;
(b)the period during which the urgent authorisation is to be in force;
(c)the purpose for which the urgent authorisation is given.
(5)Where the court determines any question under subsection (4), the court may make an order–
(a)varying or terminating the urgent authorisation, or
(b)directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation.
(6)Where the court makes an order under subsection (3) or (5), the court may make an order about a person’s liability for any act done in connection with the standard or urgent authorisation before its variation or termination.
(7)An order under subsection (6) may, in particular, exclude a person from liability.
21.20From this it will be seen that section 21A fulfils the role required by Article 5(4) ECHR in providing review of the lawfulness of P’s detention by a court. As such, the court is able to bring an authorisation to an end.
1MCA 2005 s21A(3)(a), (5)(a) (standard and urgent authorisations respectively). However, it goes further by allowing the court to:
•vary an urgent or standard authorisation or direct that such authorisations are varied;
•direct that the relevant authority terminate a standard or urgent authorisation;
2MCA 2005 s21A(3)(b), (5)(b) (standard and urgent authorisations respectively). •make an order about a person’s liability ‘for any act done in connection with the standard or urgent authorisation’ which can include excluding a person from liability.
3MCA 2005 ss21A (6), (7). This power only arises when the court either varies, or terminates an authorisation, or directs that it is varied or terminated.
4MCA 2005 s21A(6). 21.21In an application under MCA 2005 s21A, the court’s powers are not limited to the matters set out in section 21A, as Baker J made clear in
KK v CC and STCC:
5[2012] EWHC 2136 (COP).When a standard authorisation has been made by a supervisory body, s21A(2) empowers the Court of Protection to determine any questions relating to, inter alia, whether P meets one or more of the qualifying requirements. In particular, once the court determines the question, it may make an order varying or terminating the standard authorisation: s21A(3)(a). But once an application is made to the Court under s21A, the Court’s powers are not confined simply to determining that question. Once its jurisdiction is invoked, the court has a discretionary power under s15 to make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration; and (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. Where P lacks capacity, the court has wide powers under s16 to make decisions on P’s behalf in relation to matters concerning his personal welfare or property or affairs.
Who should make an application?
21.22In consequence of the rule changes introduced in July 2015, there is no permission filter in relation to section 21A applications.
6COPR r51(c). As has always been the case, P has a right to apply to the court under section 21A in his or her own right, irrespective of whether the RPR supports P’s application. Following the strong guidance in
AJ v A Local Authority,
7[2015] EWCOP 5, (2015) 18 CCLR 158. in which Baker J held that the
‘fundamental principle
’ was that
‘there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court’,
8Paragraph 36, citing the judgment of Peter Jackson J in Peter Jackson J in Neary v LB of Hillingdon [2011] EWHC 1377 (COP), [2011] 4 All ER 584. it is clear that RPRs should not allow their views about the merits of an application to hold them back either from making the application themselves or supporting P in doing so.
AJ spelt out clearly the responsibility on RPRs, and of independent mental capacity advocates (IMCAs) appointed under MCA 2005 s39D, as well as the responsibilities of local authorities to ensure that a person lacking capacity is able to challenge their deprivation of liberty if they wish to do so.
21.23It should be noted that Charles J touched on this case in
Re NRA9Re NRA [2015] EWCOP 59, (2015) 18 CCLR 392, para 171 and observed (obiter) that an RPR is not obliged to test every case: instead, as he noted ‘[o]bjections expressed by P are a relevant but not a determinative factor for a RPR in deciding whether to issue such proceedings.’ These remarks do not obviate the risk of a violation of P’s rights under Article 5(4) if P objects to his or her placement, especially where the objection is strongly held and consistent, but he or she is not supported to bring the case to court. At the time of writing, a further judgment from Baker J is expected in which it is anticipated that he will give further guidance as to how to identify words or actions on P’s part that can be characterised as an objection necessitating an application being brought so as to secure their rights under Article 5(4).
AJ was 88 and lived in an annexe to the home of her niece and husband, Mr and Mrs C. AJ had vascular dementia and became more dependent on care from Mr and Mrs C who eventually felt unable to provide this. AJ was placed in a unit in X House ostensibly for a respite placement but ‘with a view to … staying … on a permanent basis’. AJ was made the subject of an urgent and then a standard authorization under DOLS. Mr C was made RPR and Mr R was appointed as section 39D IMCA. All parties were aware that AJ was extremely unhappy at X House, but no application was made to the court until she had been there six months. The Official Solicitor was appointed as AJ’s litigation friend and sought declarations that AJ’s convention rights had been breached because the local authority should have ensured an authorisation or an order of the court was in place before she moved to X House; that Mr C should not have been RPR; that the local authority should have ensured the IMCA was able to exercise his responsibilities by acting as litigation friend under a section 21A application or the local authority should have issued proceedings itself.
21.24Baker J found that AJ’s rights under Article 5(4) had been violated. He summarised the wider lessons arising from the case:
133. First, I emphasise that the scheme of the DOLS is that, in the vast majority of cases, it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins. It is only in exceptional cases, where the need for the deprivation of liberty is so urgent that it is in the best interests of the person for it to begin while the application is being considered, that a standard authorisation need not be sought before the deprivation begins.
134. Secondly, professionals need to be on their guard to look out for cases where vulnerable people are admitted to residential care ostensibly for respite when the underlying plan is for a permanent placement without proper consideration as to their Article 5 rights.
135. Thirdly, a RPR should only be selected or confirmed by a BIA where he or she satisfies not only the criteria in regulation 3 of the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008 but also the requirements of paragraph 140 of Schedule A1 to the MCA 2005. This requires that the BIA not only checks that the facts set out in regulation 3 are satisfied but also carries out an analysis and reaches a judgment as to whether the prospective representative would, if appointed, (a) maintain contact with the relevant person; (b) represent the relevant person in matters relating to or connected with the Schedule; and (c) support the relevant person in matters relating to or connected with the Schedule.
136. Fourthly, the local authority is under an obligation to satisfy itself that a person selected for appointment as RPR meets the criteria in regulation 3 and in paragraph 140 of Schedule A1. If the local authority concludes that the person selected for appointment does not meet the criteria, it should refer the matter back to the BIA.
137. Fifthly, it is likely to be difficult for a close relative or friend who believes that it is in P’s best interests to move into residential care, and has been actively involved in arranging such a move, into a placement that involves a deprivation of liberty, to fulfil the functions of RPR, which involve making a challenge to any authorisation of that deprivation. BIAs and local authorities should therefore scrutinise very carefully the selection and appointment of RPRs in circumstances which are likely to give rise to this potential conflict of interest.
138. Sixthly, an IMCA appointed under section 39D must act with diligence and urgency to ensure that any challenge to an authorisation under schedule A1 is brought before the court expeditiously. Failure to do so will lead to the evaporation of P’s Article 5 rights.
139. Seventhly, the appointment of a RPR and IMCA does not absolve the local authority from responsibility for ensuring that P’s Article 5 rights are respected. The local authority must monitor whether the RPR is representing and supporting P in accordance with the duty under paragraph 140 and, if not, consider terminating his appointment on the grounds that he is no longer eligible. The local authority must make sufficient resources available to assist an IMCA and keep in touch with the IMCA to ensure that all reasonable steps are being taken to pursue P’s Article 5 rights.
140. Finally, in circumstances where a RPR and an IMCA have failed to take sufficient steps to challenge the authorisation, the local authority should consider bringing the matter before the court itself. This is likely, however, to be a last resort since in most cases P’s Article 5 rights should be protected by the combined efforts of a properly selected and appointed RPR and an IMCA carrying out their duties with appropriate expedition.
What if the RPR does not bring the challenge?
21.25In cases where the RPR – for whatever reason – does not bring a challenge, there are a number of potential routes whereby an application under MCA 2005 s21A may be made. A member of P’s family may make the application in their own right (subject to the permission of the court
10MCA 2005 s50.); or as P’s litigation friend.
Re UF11Re UF [2013] EWHC 4289 (COP), [2014] COPLR 93. concerned a woman who had been deprived of her liberty at a care home under a standard authorisation. UF’s RPR supported the deprivation of liberty, as did all her family save AF, one of UF’s daughters, who considered her mother to be very unhappy at the care home, to the point that AF felt her mother’s life was endangered. Although AF could have made the application herself (which would (at the time) have required permission), Charles J noted there was ‘force in seeing whether an application should be made by or on behalf of P’.
12Re UF [2013] EWHC 4289 (COP), [2014] COPLR 93 para 13. It was clear that the RPR was unlikely to agree to commence proceedings. The advice given to AF by her ‘experienced solicitor’ was for AF to apply under MCA 2005 s21A as UF’s litigation friend. This was a pragmatic solution which ensured that the case was brought before the court, although Charles J ultimately concluded that AF’s understandable emotional involvement in the case made it inappropriate for her to continue as litigation friend.
21.26Practitioners advising family members or carers concerned about a standard authorisation should check that an RPR has been appointed (as this is sometimes overlooked) and whether the RPR is willing to challenge the authorisation. If they are not, but the family member or carer can provide evidence suggesting that P objects to their placement, then the best solution may be for the family member or carer to facilitate an application by acting as P’s litigation friend. If this happens, the proposed litigation friend can apply for non-means tested legal aid on P’s behalf. If this course of action is adopted, it must be borne in mind that the court may well consider at a later date that an alternative litigation friend should be appointed.
21.27As emphasised at para 21.22 above, P has a right to make an application under MCA 2005 s21A in his or her own right. P may well have capacity to make the decision to challenge the deprivation of his or her liberty, even if he or she lacks capacity to conduct the proceedings once they are under way. By way of analogy, we note the decision in
London Borough of Hillingdon v WW (Special Educational Needs: Other)13[2016] UKUT 253 (AAC). in which Upper Tribunal Judge Jacobs drew an important distinction between the decision to appeal against a Special Educational Needs Tribunal and the conduct of such an appeal:
… capacity depends on the matter in respect of which a decision has to be made: section 2(1). So a person may have capacity at one time but not at another, and may have capacity in respect of one matter but not another. The matter I am concerned with is the bringing of an appeal; that is what I mean when I refer to (lack of) capacity. The young person may have capacity in respect of that, but not in respect of other decisions that have to be made in the course of the proceedings. Equally, a person may lack capacity to bring an appeal, but have capacity to make other decisions in the course of the proceedings.
21.28Applying the logic of this decision, it is suggested that it would be entirely possible that a person would have the capacity to bring an application under MCA 2005 s21A but not to have the capacity then to instruct his or her legal representatives in respect of all the decisions that may need to be brought during the course of that application. This is consistent with the reasoning of Charles J in
YA v Central and North West London NHS Trust and others14[2015] UKUT 37 (AAC), [2015] MHLR 144, para 7. in the context of mental health tribunals, where he drew a distinction between capacity to apply to the tribunal and capacity to appoint a representative for the tribunal:
So to have capacity to appoint a representative a patient needs to have more than only an understanding that they can make an application to a mental health review tribunal or have someone else make it for them, and thus the limited capacity referred to in R(H) v SSH [2006] 1 AC 441.
21.29Legal aid is available for section 21A cases, in some circumstances without reference to the means test. The provisions are discussed in chapter 6.
Making the application
21.30The procedure for making an application is not complex. Guidance is provided in Practice Direction (PD) 10AA. It is essential for practitioners to be familiar with this practice direction and to follow the procedure it sets out to ensure that the application is treated with the appropriate urgency.
21.31Practitioners will see from the practice direction that they are asked to contact the Deprivation of Liberty (DOL) Team as soon as they know that an application is likely to be issued.
15PD 10AA paras 2–3. It is important for practitioners to note that they can and should alert the DOL team in the event of other very urgent matters that are not applications under section 21A but which may relate to deprivation of liberty and require urgent attention.
16PD 10AA para 2.21.32Whilst section 21A applications are not personal welfare cases for purposes of the Case Management Pilot, it is prudent to proceed on the basis that the court will seek, insofar as possible, to apply the same approach to case management.
Preparing the application
21.33Applications made under section 21A should be made on the forms that have been specially designed for this purpose, and the benefit of these is that they are easily distinguished from other applications and can be dealt with by the right team urgently. If at all possible, it is very helpful to have electronic copies as part of a case management system allowing details to be inputted electronically.
21.34Form DLA, the deprivation of liberty application form, contains ‘prompts’ to ensure all relevant issues are addressed:
•Section 2 allows information to be added about interested parties. This term is not used in the rules. Inclusion in this section does not result automatically in the person or body named as interested party being joined as a party, as they have not been named as a respondent. If served with the application, however, the proposed interested party will be bound by orders of the court as if they were a party.
17COPR rr73(1), 74. •Section 3 requires consideration of whether an interim application is being made and asks whether other applications are to be made.
•Section 4 asks for a detailed statement of grounds and in most cases it will be advisable to prepare this – or instruct counsel or a Higher Rights Advocate – as a separate document. This is an opportunity to address from the outset the issues that are likely to feature. For example, are there obvious defects in any of the assessments or the authorisation itself?
•It should be noted that that section 8 requires a statement of facts relied on. It is suggested that sections 8 and 5 could conveniently be combined in the same document.
•Section 5 asks the applicant to identify other ‘issues that will arise for determination in respect of the relevant person’ and any other applications that have been made or that the applicant intends to make. These might include broader welfare questions such as an application for a declaration as to P’s best interests in terms of residence or contact; or whether an HRA 1998 claim may be made.
•Section 6 seeks information about other pending applications, so that the court can consider whether these should be linked. In addition to outstanding welfare applications, practitioners should check whether they are aware of any outstanding property and affairs applications.
•Section 7 invites the applicant to identify any special assistance or facilities that will be needed to enable the applicant to attend court.
•Section 10 provides a helpful checklist.
21.35Form DLB is a declaration of exceptional urgency to be used to explain if it is necessary for the court’s usual timetable to be abridged.
21.36Form DLC is no longer required, as there is now no permission filter for section 21A applications.
21.37It should be noted that the practice direction anticipates that the above forms will be served at the same time that they are lodged with the court.
18PD 10AA para 10. In addition to the forms a fee of £410 is payable (see appendix F below). This can be claimed as a disbursement on the applicant’s legal aid certificate, whether the applicant is P or the RPR.
21.38In addition to the forms, which must be completed, form DLA lists a number of supporting documents which might be filed at court with the forms. These include copies of the authorisation and assessments, a witness statement on form COP24, a copy of the legal aid certificate if any, copies of relevant statutory material, and a draft order which if possible should also be provided electronically on disk.
19PD 10AA para 15. It is our advice to provide as much information as possible, given that the first order will be made on the basis of the information in the papers alone.
20PD 10AA para 20.21.39In particular, and where time allows, any witness statements should be carefully prepared. Although significant information can be provided by means of the statement of facts and grounds, this is no substitute for witness evidence in which the applicant is able to set out in full their perspective as well as state the relevant facts. Considerable time will be saved if the documents are paginated and indexed. A paginated indexed bundle is required for the first hearing in any event.
21PD 10AA para 26.After the application is received
21.40Once the documents are received by the court, the practice direction provides that steps will immediately be taken to ensure the papers are considered by a judge who will make a first order. This is likely to deal with the following matters:
•Identifying a litigation friend, if possible; if not this will usually be deferred to the first attended hearing. This may include an invitation to the Official Solicitor to act, if there is no other litigation friend.
•Identifying the parties, or those who may wish to join as parties,
•Initial disclosure from the supervisory body
•A timetable leading up to the first hearing for filing and serving evidence; preparation of the bundle and position statements.
•The order will usually encourage the parties to communicate and narrow the issues before the hearing takes place.
21.41For a discussion on litigation friends and accredited legal representatives in section 21A cases, see chapter 11.
21.42The applicant is responsible for following up any directions made and is also responsible for service of the order and any other relevant papers that have not already been served, together with form DLE (acknowledgement of service). The applicant must file form DLD (certificate of service).
21.43The first attended hearing should be listed within five working days of the judge’s first order (ie the date of issue of the application).
22PD 10AA para 24. If the applicant considers this will be too late, this should be made clear on form DLB (see para 21.35 above). The first hearing is likely to take place at the closest regional court to P. It will usually be fixed without reference to the parties’ availability.
Preparing for the first hearing
21.44If the Official Solicitor is invited to act when initial directions are made then any solicitors instructed by him are likely to have very limited time to prepare for the first hearing. The same is likely to be true for an ALR in the event that one is appointed by the court. In chapter 11 we propose at paras 11.108ff some practical steps when planning to visit P for the first time. A solicitor instructed by an RPR (whether in their own right or as litigation friend to P) will have the advantage of the background knowledge of the RPR and may well have met with P before making the application.
21.45Consideration should be given to the directions which will be sought at that hearing. For example, are there any outstanding issues about the appointment of a litigation friend?
23See chapter 11. Is expert evidence required? Given the pressure of time in section 21A appeals, an application for permission to instruct an expert is more likely to be granted if an expert has already been identified and his or her timetable ascertained in advance of the hearing.
21.46If it has not yet been possible to identify all those parties who should be joined to the application then this should be put in hand now. In particular it is important to ascertain the role which relevant statutory bodies should play in the application. This is important to enable the court to identify what alternatives to P’s current placement may be available. The supervisory body will be a respondent; however if P is detained in a hospital consideration should be given to joining the Trust providing care to P. If P is in receipt of NHS continuing healthcare, then the CCG commissioning P’s care may have to be joined. There may be family members who should be given an opportunity to join as parties. If at all possible contact should be made with potential respondents before the hearing.
21.47Practitioners will wish to decide now whether to instruct counsel for the directions hearing or whether to undertake the advocacy themselves. Solicitors are entitled to appear in the Court of Protection (see chapter 6) and directions hearings may be relatively informal. Whether instructing counsel or appearing himself or herself, the ALR should attend court personally as should, ideally, the solicitor instructed by the litigation friend.
21.48The court will usually require a position statement and a draft order to be submitted by each party. There are precedent orders on the Court of Protection Handbook website.
24https://courtofprotectionhandbook.com/precedents/. Position statements for the first directions hearing need not be long, especially if relatively detailed grounds have been prepared. The aim should be to:
•either provide a summary of the background to the judge or signpost him or her to such a summary (for example in the grounds);
•explain what steps have been taken so far;
•provide an account of P’s wishes if possible;
•identify the issues in the application; and
•explain the orders that will be sought and why. If expert evidence is sought, then it is prudent to proceed on the basis that the more stringent test applicable under the Case Management Pilot will be applied. This is considered further at para 12.69.
21.49There will be some – relatively rare – cases where it is possible to determine the challenge to the authorisation at the first hearing. However, in the majority of cases further evidence will be needed and therefore the court will consider how to regulate the intervening period, if P is to continue to be deprived of their liberty while the case continues. Paragraph 6.62 provides details as to how this can best be achieved without compromising non-means testing legal aid for P or the RPR.
21.50If the directions are not contentious it may be possible to vacate the hearing by consent.
The approach of the court to section 21A applications
21.51The range of issues which can arise in section 21A applications is huge. While some section 21A cases may focus on the level of restrictions to which P is subject,
25Including, for example, the use of covert medication- see AG (by her litigation friend the Official Solicitor) v BMBC and SNH [2016] EWCOP 37. many involve a dispute about P’s best interests as regards residence or care. In
Re HA26[2012] EWHC 1068 (COP), [2012] COPLR 534. Charles J provided guidance as to how the key issue of contested residence which underpinned the section 21A appeal he was hearing should be resolved speedily. He considered that the key to this was an investigation of the ‘pragmatically available options’ which would be achieved in that case through the local authority identifying the potential alternatives (for example, maintaining the status quo, a move to another provider or a home placement) and informing the court and parties how these could be provided and funded. This is consistent with the subsequent decision of the Court of Appeal in
Re MN.
27Re MN [2015] EWCA Civ 411, [2016] Fam 87. This decision is under appeal to the Supreme Court at the time of writing, with a hearing listed for December 2016.21.52
North Yorkshire County Council v MAG, GC and ACCG28[2015] EWCOP 64. concerned applications under MCA 2005 s16, rather that MCA 2005 s21A. It provides, however, an example of the application of the principles in
Re MN to cases concerning deprivation of liberty. At first instance District Judge Glentworth refused to endorse a care plan for MAG who lived in a ground floor flat and received one to one support at home, and two to one support in the community. MAG’s accommodation was unsuitable – he could not stand independently or use his wheelchair indoors as there was not enough room. It was generally accepted that it would be in MAG’s best interests to move to a less restrictive property but no such property was available and the judge was asked – following
MN – to approve the deprivation of MAG’s liberty on the basis of his current care plan. In her decision the judge stated that she accepted the Official Solicitor’s argument that the inability of the Court to compel a public authority to agree to a care plan does not apply when the issue is the right to liberty under Article 5.
21.53The appeal of the local authority and the CCG was upheld by Cobb J in
North Yorkshire County Council (1) A CCG (2) v MAG (by his litigation friend the Official Solicitor.
29[2016] EWCOP 5, [2016] COPLR 346. Cobb J accepted that
if MAG’s living conditions in fact violated Article 5, the Court would have to refuse to authorise it. However for MAG’s conditions to comply with Article 5, he held that they had only to be ‘appropriate’, not the most appropriate; a ‘high threshold’ would need to be crossed and conditions would need to be ‘seriously inappropriate’ to establish a violation. Indeed, ‘deprivation of liberty of a person who lacks capacity in his own home, under a care plan delivered by qualified care providers, is most unlikely to breach his Article 5 rights’.
30At para 26. Cobb J further held that the judge had exceeded the powers of the court by taking a decision on behalf of MAG that he could not take for himself; that she had made factual findings which were unfair; and exerted impermissible pressure on the local authority.
21.54This does not however mean that the need for what the President described in Re MN as ‘rigorous probing, searching questions and persuasion’ is obviated if at the early stages of an application a statutory body indicates an unwillingness to fund a particular option. It will almost always be appropriate to ask for a direction that the relevant body files a statement setting out the available alternatives; explaining what they are willing to fund and expressing a view as to P’s best interests. In the authors’ experience this process can often generate new ideas and options which had not been obvious at the start of the case.
21.55Some first instance judgments in section 21A applications demonstrate a willingness by the court to accede to strongly held wishes by P to live at home, even where the available care package was not optimal and involved some risk to P.
Re M (Best Interests: Deprivation of Liberty)31[2013] EWHC 3456 (COP), [2014] COPLR 35. concerned a woman with unstable diabetes who was deeply unhappy in a care home, to the extent the placement there was considered to be unstable. The choice was between 24-hour care in the placement and a return home with a ‘standard care package’, because 24-hour care at home would be prohibitively expensive. Lifting the authorisation, Peter Jackson J observed at para 38:
In the end, if M remains confined in a home she is entitled to ask ‘What for?’ The only answer that could be provided at the moment is ‘To keep you alive as long as possible.’ In my view that is not a sufficient answer. The right to life and the state’s obligation to protect it is not absolute and the court must surely have regard to the person’s own assessment of her quality of life. In M’s case there is little to be said for a solution that attempts, without any guarantee of success, to preserve for her a daily life without meaning or happiness and which she, with some justification, regards as insupportable.