Section 21A- when to apply?

Re RD and other (Duties and Powers of Relevant Persons’ Representatives and section 39D IMCAs) [2016] EWCOP 49

Baker J has handed down judgment in this important case which follows on from Re AJ (Deprivation of Liberty Safeguards) [2015] EWCOP 5.  In AJ Baker J considered the role of the RPR and IMCAs, and their duty to bring a case before the Court of Protection under s21A MCA in cases where P clearly and consistently objects to the arrangement for his or her treatment.  Practitioners in the COP will have seen a significant increase in the numbers of cases brought at the instigations of paid RPRs.   However in cases where P does not express as clear and articulate a wish as AJ did- possibly because P is more severely impaired- it has not always been easy to identify when an application should be made,  because it is not always easy to distinguish objection to the care arrangements from, for example, distress as a manifestation of mental disorder or other factors.  Five test cases were identified, all involving elderly people with dementia.  In some cases their stated wishes were ambivalent; others had displayed agitation, in circumstances where the cause was not clear.

Baker J heard and read submissions from the Official Solicitor as litigation friend to RD and from the RPRs and IMCAs as litigation friends to JW, EP, JB and JP.   He further heard from counsel for the three relevant supervisory bodies and for the CCG.  He had invited the Secretaries of State for Justice and Health to consider making submissions or being joined as parties but neither accepted the invitation.

Baker J found that there is an important difference between the role of the s39D IMCA and that of the RPR.  This derives from the different language used to set out their roles and responsibilities in the MCA, Schedule A1 and the DOLS Code.  Materially the s39D IMCA has an obligation to help P or the RPR apply to the court, but this is triggered only when it “appears” that they wish to do so (s39D(7) and s39D(8)).  The obligations of the RPR are expressed in broader terms and include proactively assessing whether P wishes to apply to the court, or to exercise the right to review in Part 8, Schedule A1.  He commented that “where possible, concerns about the deprivation of liberty should be resolved informally, including under the review process of Part 8.  The aim is to limit applications to the court to cases that genuinely need to be referred to it” (at [73]).

The judge has given the following guidance:

[86] I therefore suggest the following approach be adopted by RPRs and IMCAs in these cases.  In setting this out I am drawing substantially on the guidance proposed by Ms Butler-Cole and Miss Leonard to whom I am very grateful.

(1)      The RPR must consider whether P wishes, or would wish, to apply to the Court of Protection.  This involves the following steps:

(a)   Consider whether P has capacity to ask to issue proceedings.  This simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements.  It is a lower threshold than the capacity to conduct proceedings. 

(b)   If P does not have such capacity, consider whether P is objecting to the arrangements for his/her care, either verbally or by behaviour, or both, in a way that indicates that he would wish to apply to the Court of Protection if he had the capacity to ask.

(2)      In considering P's stated preferences, regard should be had to:

(a)   any statements made by P about his/her wishes and feelings in relation to issuing proceedings, 

(b)   any statements made by P about his/her residence in care,

(c)    P's expressions of his/her emotional state, 

(d)   the frequency with which he/she objects to the placement or asks to leave,

(e)   the consistency of his/her express wishes or emotional state; and

(f)    the potential alternative reasons for his/her express wishes for emotional state. 

(3)      In considering whether P's behaviour constitutes an objection, regard should be had to:

(a)    the possible reasons for P's behaviour,

(b)   whether P is being medicated for depression or being sedated,

(c)    whether P actively tries to leave the care home,

(d)   whether P takes preparatory steps to leave, e.g. packing bags,

(e)   P's demeanour and relationship with staff,

(f)    any records of challenging behaviour and the triggers for such behaviour.

(g)   whether P's behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements.

(4)   In carrying out this assessment, it should be recognised that there could be reason to think that P would wish to make an application even if P says that he/she does not wish to do so or, conversely, reason to think that P would not wish to make an application even though he/she says that she does wish to, since his/her understanding of the purpose of an application may be very poor.

(5)   When P does not express a wish to start proceedings, the RPR, in carrying out his duty to represent and support P in matters relating to or connected with the Schedule, may apply to the Court of Protection to determine any of the four questions identified in s.21A(2) i.e. on the grounds that P does not meet one or more of the qualifying requirements for an authorisation under Schedule A1; or that the period of the standard authorisation or the conditions subject to which the standard authorisation is given are contrary to P’s best interests; or that the purpose of the standard authorisation could be as effectively achieved in a way that is less restrictive of P’s rights and freedom of action. 

(6)   Consideration of P's circumstances must be holistic and usually based on more than one meeting with P, together with discussions with care staff familiar with P and his/her family and friends.   It is likely to be appropriate to visit P on more than one occasion in order to form a view about whether proceedings should be started.

(7)   By way of an alternative to proceedings, it may be appropriate to instigate a Part 8 review, or to seek to work collaboratively with the family and the commissioning authority to see whether alternate arrangements can be put in place. Such measures should not, however, prevent an application to the court being made where it appears that P would wish to exercise a right of appeal.

(8)   The role of the IMCA appointed under s.39D is to take such steps as are practicable to help P and the RPR understand matters relating to the authorisation set out in s.39D(7)(a) to (e), and the rights to apply the Court of Protection and for a Part 8 review, and how to exercise those rights.  Where it appears to the IMCA that P or the RPR wishes to exercise the right, the IMCA must take all practical steps to assist them to do so.  In considering P's apparent wishes, the IMCA should follow the guidance set out above so far as relevant.

[87] Finally, on the general issues arising, although I have in these proceedings considered, as a preliminary issue, the question whether applications in these proceedings are properly brought, this question should not normally be raised as a preliminary issue in every case, either on an application by the respondents to strike out the application or by some other process.  Such a course would lead to unnecessary satellite litigation and would only add to the delays in, and burdens on, the Court of Protection.

Comment:

It is hoped that IMCAs and RPRs will find the above guidance helpful, and that it will give them confidence in deciding which cases to bring before the court.  The structured list probably reflects “best practice” by paid RPRs, and it is of benefit to have this recognized by the court.    The fact that the judge discourages satellite litigation about whether or not am application has been properly brought is also likely to assist.

The reminder that capacity to decide to apply to the court is not the same as capacity to conduct the hearing is important and is consistent with the position in relation to applications to the Mental Health Tribunal (R(H) v Secretary of State for Health [2005] UKHL 60).  In the cases where P lacks such capacity the RPR is to consider whether P is objecting, either verbally or by his behaviour, “in a way that indicates that he would wish to apply to the Court of Protection if he had the capacity”.  It is this interpretation of P’s behaviour that is likely to continue to challenge RPRs.

The reference to the RPR’s power under s50 to bring an application to the court even absent an indication that P would wish an application to be made, but where the RPR considers the court should determine any or all of the questions in s21A(2)  is extremely welcome and is a protection for those least able to express a view about their circumstances.   At [79] the judge encourages RPRs who hold concerns about the qualifying requirements to try to resolve these by using the review process in part 8; and explains that a decision by the RPR to exercise that power should be made on the basis of P’s best interests.

The emphasis on the need for a holistic consideration of P’s situation by the RPR, and for discussions with carers, family and friends is again welcome.

The reminder to consider the use of part 8 reviews as an alternative to court proceedings is unsurprising, and may result in the resolution of issues and thus obviate the need for an application in some cases.   It is worth noting however that the right of P and the RPR to non-means tested legal aid arises only in proceedings under s21A, and not in connection with “contemplated proceedings” (see reg 5, Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013).  Thus although legal help may be provided to advise P or the RPR in the course of a Part 8 review, this will be subject to a means test.