The recent judgment in DP v London Borough of Hillingdon  EWCOP 45 has important implications for interim declarations of capacity in s21A proceedings in the Court of Protection.
This case arose as an appeal from an order made by Deputy District Judge Chahal in an application to the Court of Protection under s21A Mental Capacity Act 2005. DP, the subject of the proceedings, made an application to the Court of Protection under s21A Mental Capacity Act 2005 challenging the standard authorisation under which his deprivation of liberty in his care home was authorised.
The case came before Deputy District Judge Chahal on 6 May 2020. At that hearing, the court was asked to terminate the standard authorisation on the basis that DP had mental capacity to make his own decisions about his residence and care.
The only evidence before DDJ Chahal as to DP’s capacity to make decisions about his residence and care was an assessment carried out in August 2019 by a Dr Longe. Dr Longe had not communicated accurately to DP the purpose of his visit, but instead introduced himself as a best interests assessor there to review DP’s care and support needs. Dr Longe’s capacity assessment had not addressed the central question of whether DP was able to evaluate the available options for his residence and care. Instead, he had addressed the very different question of whether DP was able to assess the potential risks of leaving the care home altogether (which was not an option being suggested).
Although DDJ Chahal expressed reservations about the capacity assessment, she considered that there was sufficient evidence before her to make an interim declaration under s48 MCA 2005 that DP lacked capacity to make decisions about his residence and care. She then made directions in the proceedings with a view to obtaining a further assessment of DP’s capacity under s49 MCA 2005.
DP appealed, on the basis that the judge’s approach to the declaration of incapacity had been wrong and that the order was in breach of Article 5(4) and Article 8 of the European Convention on Human Rights (ECHR).
The judgment: an end to s48 declarations in s21A proceedings?
s21A MCA 2005 is the statutory route by which the Court of Protection can be asked to vary or discharge a Deprivation of Liberty authorisation. It was enacted to comply with the Article 5(4) requirement for court proceedings which can ‘speedily’ determine the lawfulness of a deprivation of liberty (Re UF  EWCOP 4289).
Importantly, as Hayden J noted, the court’s approach and role in a s21A application are therefore different to that in a broader ‘welfare’ application (an application for orders and declarations under ss15 and 16 of the Act). The “discrete scope and ambit” of a s21A application is to examine whether the qualifying requirements for an authorisation for deprivation of liberty (set out in Schedule A1 to the Act) are met on the evidence before it at the time.
Hayden J made it clear  that s48 ‘interim declarations’ on capacity should not be made in s21A proceedings. That is because whilst a standard authorisation is in force, it provides the legal authority for the deprivation of liberty; the Court of Protection does not, on the issuing of a s21A application, become responsible for authorising the continuing deprivation of liberty.
Whilst s48 does permit interim orders to be made in s21A applications, these can only be made where it is identifiably in P’s best interests, and the objective of s48 is neither restrictive nor facilitative; it should not be “regarded as a perfunctory gateway to a protective regime”. The statutory threshold for an order (“reason to believe that P lacks capacity in relation to the matter”) should not be glossed, and is to be answered by surveying all available evidence.
Hayden J noted that there were “clear deficiencies” in the capacity evidence before DDJ Chahal, and emphasised that a failure to inform P of the purpose of a capacity assessment “will probably be ‘fatal to’ or, at least ‘gravely undermine’ the reliability of any conclusion”. He accepted that where (as in this case) the court was uncertain, on the evidence before it, as to whether the mental capacity requirement for the standard authorisation was met, it should investigate the issue further via interim directions, but do so ‘speedily’ in accordance with Article 5(4).
The implications of the judgment
This is a judgment with potentially significant implications for Court of Protection procedure and practice.
In particular, the judgment provides a very welcome (and necessary) reminder that Article 5(4) requires a ‘speedy’ review of deprivation liberty. Too often, s21A proceedings become a protracted series of directions hearings, leading to a final hearing only months or sometimes years after the application is lodged. The criticisms levelled by Hayden J at the “clear deficiencies” in the capacity evidence before DDJ Chahal will also unfortunately be familiar to many practitioners.
The suggestion in the judgement  that deficiencies in standard authorisation assessments can and should be explored and corrected at an early stage by hearing evidence in court from the capacity assessor is welcome, and is likely to apply equally to other evidence which is before the court in the early stages of proceedings. A more robust approach to s21A proceedings, in which wherever possible the parties and the court engage with the substance of DoLS assessments rather than reverting to s49 or expert reports, might bring about a substantial improvement in the both the quality of assessments and the ‘speediness’ of s21A proceedings.
Oliver Lewis acted for DP with Victoria Butler-Cole QC.
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