Judge: Moses, Black and Gloster LJJ
Citation:  EWCA Civ 1661
Summary: The father and Relevant Person’s Representative (‘RPR’) of a forty-year-old man (‘AA’) challenged his son’s deprivation of liberty at a residential care home. The first MCA 2005 s 21A challenge was withdrawn upon His Honour Judge Gore QC acceding to the Official Solicitor’s application, having concluded that all the qualifying requirements were met. But six months later he made a second MCA 2005 s 21A challenge to a further standard authorisation. Mr Justice Peter Jackson directed that the matter should be listed before HHJ Gore QC and the father would “be required to satisfy the court as to the purpose of these further proceedings” (paragraph 21).
HHJ Gore QC replaced the father with the Official Solicitor as applicant in the proceedings, made the father the second respondent, and granted permission to the Official Solicitor to withdraw the second MCA 2005 s 21A application. His Honour considered the review process in Part 8 of MCA 2005 Schedule A1 to be a more suitable mechanism by which the father could demand a review by the Local Authority of the standard authorisation and address concerns as to place of residence, care plan, care regime and input in relation to rehabilitation. It would also “avoid the need for the detailed legal representation and submissions and the costs consequence of what would be called for in a full-blown section 21A appeal” (paragraph 25).
The father sought permission to appeal that first instance decision to Peter Jackson J (rather than to the Court of Appeal), contending that by failing to determine the legality of AA’s continued detention, HHJ Gore QC had breached Article 5(4) ECHR. His Lordship, acting as a “junior appellate court”, refused permission on the papers because the appeal was out of time with no real prospect of success. Moreover:
“AA’s rights under Art. 5 (4) were respected. Section 21A MCA 2005 provides that the court may determine questions relating to standard authorisations. The court must determine how it approaches that task; it is not compelled to carry out a full inquiry regardless of the merits. The Judge was entitled to have regard to the fact that AA’s deprivation of liberty could be and is to be reviewed.”
The father then made an application for permission to appeal that refusal to the Court of Appeal. However, with Lady Justice Gloster giving the leading judgment, the Court of Appeal held that it had no jurisdiction to hear an appeal against that refusal; i.e. the application to appeal to Peter Jackson J (rather than to the Court of Appeal). Crucially perhaps, no application was made by the father to Peter Jackson J for permission to appeal to the Court of Appeal (the “senior appellate court”). Thus, in essence, the appeal process adopted by the Appellant resulted in a jurisdictional flaw between the junior and senior appellate courts which regrettably prevented the significantly important substance of the case being determined at the senior level.
As to the substantive issue regarding the extent to which a challenge under MCA 2005 s 21A must be considered by the Court in order to satisfy the detained resident’s Article 5(4) rights, in addition to Peter Jackson J’s comments is the short judgment of Lord Justice Moses:
“73. The comprehensive judgment of Gloster LJ has demonstrated why this Court has no jurisdiction to consider the appellant’s application for permission to appeal against the decisions of either Peter Jackson J or of HHJ Gore QC. I agree. It must be a rare case that judicial acuity is a source of regret. But I do regret that this court has no jurisdiction to determine this particular appeal.
74. My regret stems from the course taken by HHJ Gore QC, who may have misunderstood the direction given by Peter Jackson J on 20 January 2012 (see  of Gloster LJ’s judgment). This direction and the Official Solicitor’s application to forestall the application led HHJ Gore QC to permit withdrawal. This, in turn, led to the complaint in this application that the appellant was unlawfully deprived of the opportunity of exercising his right to appeal against the standard authorisation. Since this court has no jurisdiction I am unable to say whether the judge acted unlawfully.
75. But it may be useful, to prevent any repetition of this unfortunate history, to record that the Official Solicitor did not in these proceedings dispute the proposition that HHJ Gore QC was required to determine the appeal and could not lawfully refuse to consider it, however obvious the outcome and however short the hearing and disposal of the appeal. The only argument was whether, on a fair reading of his judgment, HHJ Gore QC did dismiss the appeal without proper consideration. I need only emphasise that due and proper consideration of an appeal under section 21A MCA 2005 may not require any lengthy consideration. A full hearing is not necessarily a lengthy, time consuming or expensive hearing. The irony is that, the process by which this appeal was withdrawn, without, at least arguably, a full hearing, has occupied more time and incurred more expense than a short hearing would have entailed.” (our emphasis)
Comment: Along no doubt with many others, the editors share the regret expressed by Lord Justice Moses. It seems that the Court of Appeal would have had jurisdiction if the father had either (a) applied for permission to the decision of HHJ Gore QC directly to the Court of Appeal, or (b) asked Peter Jackson J for permission to appeal to the Court of Appeal against his refusal to grant permission to appeal the decision of HHJ Gore QC. A recent example of the former scenario is In the matter of L (a child)  EWCA Civ 1557 where, having considered the merits with no jurisdictional difficulties, the Court of Appeal refused permission to appeal against the decision of HHJ Hughes sitting in the Court of Protection. Had Peter Jackson J refused permission in the latter scenario, the father could then have made a renewed application for permission to appeal to the Court of Appeal (paragraph 58).
As for AA’s Article 5(4) rights, the Part 8 mechanism for reviewing deprivations of liberty is currently something of a rather unknown quantity. It enables the Local Authority as supervisory body to review its own authorisation at any time and must review it if requested to do so by the detained resident, the RPR or the managing authority. If none of the qualifying requirements appear – it would seem to the Local Authority – to be reviewable, then no further action is required. Otherwise, it “must secure that a separate review assessment is carried out in relation to each qualifying requirement which appears to be reviewable.”
If the best interests requirement is reviewable only on the grounds that there has been a change to the person’s case which makes it appropriate to vary the conditions and that change is not significant, then the best interests review assessment is not required because it is “non-assessable”. Where it is reviewable but non-assessable (?!) the Local Authority may vary the conditions “in such ways (if any) as the supervisory body think appropriate in the circumstances.” However, in deciding whether a full reassessment of best interests is necessary, it “should consider whether the grounds for the authorisation, or the nature of the conditions, are being contested by anyone as part of the review request” (DoLS Code of Practice, para 8.14).
Part 8 does have a number of advantages. It can be more responsive than attempts to list legal proceedings. More timely assessments can be secured of, for example, mental capacity and best interests. It enables a degree of flexibility and sensitivity in the variation of conditions when tailoring the terms of the standard authorisation to the person’s present best interests. It is, of course, cheaper than legal proceedings. In 2012-3, we know that of the 1973 requests for Part 8 reviews, 46.2% were initiated by the supervisory body, 48.8% by the managing authority, and 5% by the detained resident or their representative. Whilst the 5% figure may be a cause for concern, conclusions are difficult to draw because responsible supervisory bodies and managing authorities may be requesting a review on behalf of the detained resident. We also note that the DoLS data for 2014-5 will expressly capture the number of reviews and their outcome.
However, what is clear is that Part 8 is not, and was never intended to be, a pre-requisite or alternative to a MCA 2005 s 21A challenge. It lacks a certain independence, given that it is carried out by the initial body that authorised the deprivation of liberty. It lacks the necessary judicial character and, although it may achieve a review assessment, there appears to be little scope to challenge the merits of that assessment within the review process. Recourse to the Court of Protection is the principal Article 5(4) guarantee and Part 8 should not be a legal or practical obstacle barring the person from being able to benefit from such a procedural guarantee (MH v UK  ECHR 1008, para 93).
From the comments of Moses LJ it would appear safe to conclude that where proceedings are initiated under MCA 2005 s 21A, the Court must give due and proper consideration to, and determine, the appeal, however obvious the outcome. Hopeless challenges by those other than the detained resident or their RPR can no doubt be filtered at the permission stage. But there must otherwise be such judicial consideration of the appeal to safeguard the person’s Article 5(4) rights. Moreover, as Sir Nicholas Wall held in A Local Authority v A  EWHC 727, “the court cannot simply act as a rubber stamp, however beneficial the arrangements may appear to be for the individual concerned.” There, the person’s Article 5(4) rights and the court’s overriding objective were met by obtaining a report from the Court of Protection Visitor, funded by the Court. If, as the parties (but not the detained resident) agreed, it was to confirm that the person lacked the relevant capacity and that the continued deprivation of liberty was in his best interests, the case could properly be dealt with by way of a written consent order and judicially considered on the papers.