Judge: Baker J
Citation:  EWCOP 49
Five test cases involving elderly people (RD, JB, JP, EP and JW) who suffered from a form of dementia were identified to enable the court to consider the question of when an application should be made under section 21A MCA. A brief description of the five cases is as follows:
In the earlier case of AJ  EWCOP 5 (which was reported in our February 2015 newsletter), Baker J considered the selection and appointment of RPRs and IMCAs, and the duty on the local authority to ensure that the person who lacks capacity is able to challenge the deprivation of their liberty. In this case, Baker J concentrated on the question of how the relevant person’s representatives (RPRs) and s.39D MCA 2005 independent mental capacity advocates (IMCAs) should decide whether to bring an application to the Court of Protection under s.21A MCA 2005. In the end, the local authorities accepted that the section 21A applications had been properly brought in the cases of EP and JW, and the other three cases (RD, JB and JP) were referred back to the RPRs for a decision in light of the court’s general guidance.
When to bring proceedings under section 21A MCA
Competing submissions were made on behalf of the Official Solicitor, the RPRs/s39D IMCA, the local authorities and CCG.
The Official Solicitor argued that the court should adopt a broad approach to the general question as summarised by the court at paragraph 46:
The Official Solicitor characterised the RPR’s decision as a best interests’ decision which required the RPR to take into account all the relevant circumstances, including P’s wishes and feelings, as well as the likely benefit to P of independent judicial scrutiny, and the impact of the proceedings on P, whether positive or negative (para 54).
The RPRs and s.39D IMCA argued that in cases other than those in which P expressed a clear and consistent objection to the arrangements for his/her care and treatment, proceedings under s. 21A should be issued where it appears, having regard to all the circumstances, that P wishes, or would wish, to exercise a right of appeal. This required evidence capable of founding a reasonable belief that P would wish to appeal, having regard to P’s express wishes, his or her behaviour, and the wider circumstances of his or her deprivation of liberty (para 56).
The local authorities expressed real concern at the practical consequences of the approach advanced on behalf of the applicants which would be significant, particularly in the context of the increased level of DOLS applications following Cheshire West in an economic environment where a local authority might be subject to significant cuts.
They argued that proceedings under section 21A should be issued where it appears that P or the RPR wishes to exercise a right of appeal (para 62). There was no need to add the words “would wish” but accepted that in reality there may be little difference (para 65).
The CCG made common cause with the local authorities and argued that what is required is a reasonable belief, considering the totality of the evidence, that it appears that P wishes to apply to court (para 70).
Baker J gave some helpful general guidance as to the approach that should be adopted by RPRs and IMCAs in deciding whether to issue proceedings under s.21A at para 86:
(1) The RPR must consider whether P wishes, or would wish, to apply to the Court of Protection. This involves the following steps:
(2) In considering P’s stated preferences, regard should be had to:
(3) In considering whether P’s behaviour constitutes an objection, regard should be had to:
(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.”
The role of the RPR
The supervisory body must appoint a relevant person’s representative (RPR) for every person to whom they give a standard authorisation for deprivation of liberty. Baker J described the RPR as “a crucial role in the deprivation of liberty process, providing the relevant person with representation and support that is independent of the commissioners and providers of the services they are receiving” (para 32)
Under paragraph 140 of Schedule A1, the RPR is obliged to:
Baker J made clear that this obligation includes:
The role of a s.39D IMCA
Baker J made clear that the role of a s.39D IMCA is much more limited. Under the MCA, the IMCA is obliged to:
By contrast with the RPR, it is not the role of the IMCA:
This is a very important judgment that makes for essential reading for all RPRs and IMCAs, as well as other practitioners. At the heart of this case is the court’s general guidance at paragraph 86 which will no doubt provide a very useful reference point for practitioners when approaching the question of whether to issue s21A proceedings.
There are a number of interesting points arising out of this judgement:
The first is the starting point of Baker J’s approach, which is for RPRs and IMCAs to consider “whether P has capacity to ask to issue proceedings” (para 86(1)(a)). Baker J made clear that this capacity test was different to the test for capacity to conduct proceedings in that it had a lower threshold. It 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.” In the event that P has capacity to ask to issue court proceedings, then plainly those wishes must be followed. It is quite possible that P may have capacity to ask to issue court proceedings but lack capacity to conduct the proceedings (in which case, P will require a litigation friend in the usual way).
Would P wish to apply to court?
In the event that P lacks such capacity, the crucial question to ask is “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” (para 86(1)(b)).
It is therefore clear that practitioners should take into account verbal and non-verbal behaviour when considering the question of whether P is objecting and would wish to apply to court. It is important that the focus of the question is on whether P wishes to apply to the court and not simply whether he or she objects to the arrangements for his or her care (para 76). However, a note of caution: practitioners should be alert to the fact that P might wish to make an application to court even though P says that he/she does not wish to, and vice-versa (para 86(4)) (AJ might well have been an example of the former). In considering whether P’s behaviour constitutes an objection, regard should be had to other possible reasons for P’s behaviour such as whether P is on medication (although Baker J does not explicitly accept or reject the local authorities’ contention that certain behaviour may be the symptom of a mental health condition) (para 86(3)). This can make it extremely difficult for RPRs and IMCAs to accurately assess whether P really wants to, or would want to, apply to court. In cases of doubt, we suggest that RPRs should also apply the best interests test in para 86(5) of Baker J’s judgment.
The role of best interests
Baker J rejected the Official Solicitor’s contention that an RPR’s decision to apply to court is always a best interests’ decision. Instead, “[w]here the RPR concludes that P wishes to apply to the court, it is not the function of the RPR to consider whether such an application would be in P’s best interests” (para 74).
However, when the RPR decides, independent of P’s wishes, that an application should be made to court under s. 21A, then he is bound to apply the best interests principle (para 80). So, in short, “the best interests principle does not apply where the RPR is facilitating P’s wish to apply to the court, but it does apply when the RPR himself is deciding whether or not to apply” (para 81).
It is very important that the second limb of the RPR’s duty to make an application to court in P’s best interests is not overlooked, even where P is not objecting (verbally or by his behaviour) to his care arrangements or expressing any wish to apply to court. RPRs must assess for themselves whether the conditions of a standard authorisation are met and whether the arrangements are the least restrictive. This is a vital part of the overall protection afforded for P’s rights. As Baker J recognised in the judgment, it is the statutory scheme as a whole that guarantees that P’s rights under Article 5(4) are adequately protected (para 85).
Tor has produced a flowchart summary of Baker J’s judgment, available here.
 See para 67 of the judgment of Baker J “In oral evidence, Ms G [the BIA] confirmed that she knew from the outset that AJ objected to being in care, but that she was adamant that she didn’t want to use her right to appeal. She wanted nothing to do with lawyers, but rather wanted Mr. and Mrs C to do what they could to get her out.”