Judge: Senior Judge Hilder
Citation:  EWCOP 61
A 73 year old woman, JV, was subject to a Standard Authorisation for deprivation of liberty in her living arrangements at a care home, Care Home A. She had first been subject to a DoLS authorisation in respect of another care home, Care Home R. Her two children, whom she had appointed jointly and severally as her attorneys, supported the placement. Whilst at Care Home R, she had been supported by three different RPRs, two of whom had been selected by one of her attorneys, and the last, RV (her son), by the BIA.
The attorneys failed to pay the fees due. As a result, the placement was terminated. The London Borough of Hillingdon arranged for JV to receive 24 hour care in a Travelodge for a period of 4 days to avoid her being ‘street homeless.’ Thereafter, on 17th September 2019 she was placed at Care Home A as an emergency placement. An urgent authorisation having been granted, Hillingdon both took the matter to court under s.21A and granted a standard authorisation. Hillingdon appointed a paid RPR.
RV and his sister made an application for RV to be “reinstated” as JV’s attorney, on the basis that Hillingdon had sought to remove RV as the RPR.
Having conducted a careful review of the provisions of Schedule A1 and the accompanying regulations, Senior Judge Hilder held that:
This meant, therefore, the appointment of a paid RPR upon granting the current standard authorisation in respect of JV’s living arrangements at Care Home A was not a ‘termination’ of RV’s appointment under the third authorisation in respect of Care Home R, but rather a fresh selection. RV had previously been appointed as RPR, but in respect of a completely different placement.
Senior Judge Hilder then had to examine the basis upon which the paid RPR had been appointed, in circumstances where regulation 6 of the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representatives) Regulations 2008, SI 2008/1315 provides that, if the BIA determines that the relevant person does not have capacity to select the RPR but has either a deputy or an attorney with authority to do so, pursuant to Regulation 6 that attorney or deputy may select the RPR, including potentially him/herself. There is fallback provision if the attorney or deputy does not wish to make the selection. After a further review of the (complex) regulations, Senior Judge Hilder concluded that the BIA had erred:
Senior Judge Hilder noted that one of the arguments advanced on RV’s behalf was that
She therefore concluded that:
DoLS may be towards the end of its life, but the regime is not quite dead yet (and will, in any event, continue to run for a period in parallel with LPS when the latter comes into force). This judgment is therefore helpful confirmation of how BIAs should consider questions of appointment of an RPR where there is a welfare attorney (or deputy) in play. It therefore reads as a useful follow-on to the judgment of Baker J in Re AJ  EWCOP 5, in which guidance was given as to how to determine whether a proposed RPR was eligible.
Further, and whilst we do not know from the judgment why Hillingdon brought the application itself, they should be commended for doing so because that ensured (as the case then fell under s.21A) that JV would be entitled to non-means-tested legal aid. It made no difference to Hillingdon to take this route to seek consideration of JV’s position. But had they sought decisions and declarations about JV under the provisions of s.16, any eligibility for legal aid would have been means-tested and, on the facts of this case, it looks most unlikely she would have received it.