Judge: Charles J.
Summary: This matter came before the Court by way of two applications, a section 21A challenge brought by P, and a separate application by P’s daughter to be appointed P’s property and affairs, and welfare deputy. P was being accommodated in a care home by the Local Authority in circumstances which the parties agreed amounted to a deprivation of P’s liberty on account of P’s continued expressed wish to return to her home. Charles J. described the central issue for the court to determine being whether or not the restrictions in a care home best promote P’s welfare in the least restrictive way, and whether there is a support package that could warrant her return home in her best interests. The Court noted that those welfare issues can fall for consideration under a number of sections of the MCA and are important to the consideration of the best interests assessment under the DOLS regime and s. 21A.
The issue for the Court on this interim application was what if any interim declarations should be made by the Court on a section 21A application pending the final hearing. In particular whether they should be declarations made pursuant to section 21A (ie to extend the statutory scheme if that is possible) or pursuant to section 16 of the MCA. The Court acknowledged the importance as a matter of practice in this distinction as a result of the different funding available from the Legal Services Commission in respect of an application under s.21A, and other applications before the court, albeit that they can often raise the same central issues.
Charles J. took the view that the court should exercise its own powers to hold the ring whilst it determines the application and therefore give appropriate interim authorisations of any deprivation of liberty and make appropriate interim orders pursuant to section 16. If, when it determines the application, the court concludes that the relevant person should live in a care home, or be in a hospital, it should generally direct that the statutory DOLS scheme should apply again to any deprivation of liberty. That regime has checks and balances that generally should be preferred to review by the court.
Despite making the declarations under section 16, his Lordship stated that the application remained one under s. 21A MCA. Even though the court is exercising powers conferred by other sections and the central issue is what available regime of care will best promote P’s best interests, the proceedings remain s.21A proceedings because they were issued under s.21A and, in the exercise of the jurisdiction conferred by that section, the court has to consider amongst other things the best interests of P.
Comment: This important judgment provides some assistance for anyone who has had to grapple with the Legal Services Commission in a s.21A challenge which persists beyond a first hearing. Mr Justice Charles was clear that the proceedings should be seen as s.21A proceedings, notwithstanding that the court may, as an interim measure, make declarations under its general welfare jurisdiction. It is to be hoped that the LSC will accept this analysis, and will not continue to withdraw non-means-tested funding in cases where a standard authorisation lapses during the course of proceedings and is not renewed, and/or where interim declarations are made by the court.