Case Summary: Re RD and others (Duties and Powers of Relevant Person's Representatives and Section 39D IMCAS) [2016] EWCOP 49

Case

Re RD and others (Duties and Powers of Relevant Person's Representatives and Section 39D IMCAS) [2016] EWCOP 49

Topics

• Court of Protection
• DoLS
• Duties and powers of RPRs and s.39D IMCAs
• Article 5(4) ECHR
• S.21A Applications

Practical Impact

In this judgement Baker J sets out the circumstances in which there is an obligation on RPRs and s.39D IMCAs to bring or to assist P to bring an application to the Court of Protection under s.21A of the MCA. He also provides practical guidance to RPRs and s.39D IMCAs to assist them in deciding whether or not an application is required.

This judgement will also be of particular relevance to local authorities and commissioners who are required to monitor whether RPRs and s.39D IMCAs are fulfilling their duties. Baker J's earlier judgment in Re AJ v A Local Authority [2015] EWCOP 5 clarified that there is a residual obligation on local authorities and commissioners to bring an application before the Court of Protection themselves where an RPR and/or s.39D IMCA has failed to take sufficient steps to challenge a Standard Authorisation.

It is anticipated that the clarity provided by this judgment will result in more consistency and fewer s.21A applications being brought.

Issue

The issue Baker J was asked to address was 'When, if at all, does the requirement under Article 5(4) to assist P to exercise his or her right to appeal to the Court of Protection under s.21A of the MCA arise in cases other than those in which P expresses a clear and consistent objection to the arrangements for his/her care and treatment.'

Article 5(4) of the European Convention of Human Rights is at the heart of this case. It provides that 'Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful'. European case law has made it clear that Article 5(4) is first and foremost a guarantee of a fair procedure, there is no need to show any particular chance of success. Special procedural safeguards may be called for in order to protect the interests of persons who, on account of mental disabilities, are not fully capable of acting for themselves.

In the context of a deprivation of liberty regularised by an Urgent or Standard Authorisation, s.21A MCA is the mechanism in domestic law to ensure P's Article 5(4) rights are met. It permits the Court of Protection, upon an application, to determine the lawfulness of P's detention pursuant to a Standard Authorisation and to vary or terminate the Standard Authorisation. P and his or her RPR can make an application to the Court of Protection at any time without permission. There are elaborate provisions in Schedule A1 of the MCA setting out the support which can be provided to P to enable him or her to bring an application.

However there are many cases where P is unable to bring an application him or herself as a result of mental disability. It is surprising therefore, that both the MCA and the statutory Codes of Practice are silent on when an RPR should make an application on P's behalf.

The only section in the MCA which provides some guidance regarding when an application should be made is found in s.39DMCA. This section applies where P has an unpaid RPR. It sets out the circumstances when the supervisory body must instruct a s.39D IMCA in addition to the unpaid RPR and goes on to set out the duties of a s.39D IMCA. These include, at s.39D(8), a requirement 'to take such steps as are practicable to help P or [the RPR] to exercise the right to apply to court, if it appears to the advocate that P or [the RPR] wishes to exercise that right.'

In Re AJ (DoLS) 2015 EWCOP 5 Baker J previously considered a number of issues concerning the provisions of the MCA, including aspects of Schedule A1. In that case all relevant stakeholders agreed that AJ's deprivation of liberty in a residential home pursuant to a Standard Authorisation was in her best interests. When AJ was offered the option of applying to the Court of Protection, she did not want to take this option. However it was common ground that her wish to challenge the Standard Authorisation could be inferred from her clear and consistent objection to being in residential care. noted that Article 5(4) gives P an unqualified right of access to the court, there is no place for a best interests decision about the exercise of that right. He therefore decided that P's RPR or IMCA was under a duty to assist P in bringing an application to the Court of Protection to challenge the Standard Authorisation. Furthermore where P's RPR or IMCA failed to do so, the Supervisory Authority had an obligation to bring an application to ensure P's Article 5(4) rights were met.

However it is not always obvious from P's words or behaviour that he or she does wish to challenge a Standard Authorisation. P's words and behaviour may fluctuate on a daily, weekly or longer term basis. Following Re AJ there remained considerable uncertainty amongst professional advocates as to the right approach to take where P's wishes and behaviour were not clear or consistent.

As a result 5 'test cases' were identified where there was uncertainty as to whether a s.21A application should be brought. Baker J was asked to determine whether the s.21A applications had been properly brought and, in doing so, to set out some guidance to RPRs and IMCAs to apply in the future.

Baker J reiterated that there is a distinction between the roles of the RPR and s.39D IMCA. Whereas RPRs have a wide role to represent and support P in matters relating to or connected with Schedule A1 MCA the s.39D IMCA's role is much more narrow and is confined to the specific duties in s.39D (7), (8) and (9) MCA.

The RPRs obligations are as follows:

• An RPR should take all steps to identify whether P wishes to exercise the right to apply to the CoP. The RPR must focus on the question whether P wishes to apply to the court and not simply whether he or she objects to the arrangements for their care. If the RPR concludes that P wishes to apply, it is the RPR's duty to ensure the application is brought on behalf of P;

• Where P is unable to communicate his/her wishes, the RPR should consider what those wishes would be if P were able to communicate them;

• An RPR should also assess for themselves whether an application should be made, independent of any wishes expressed by P. In particular the RPR should consider whether one of more of the qualifying requirements for a deprivation of liberty as defined in Part 3 of Schedule A1 are not met.

In contrast, a s.39D IMCA is only required to take such steps as are practicable to help P or an RPR to apply to court if it appears to the IMCA that P or the RPR wishes to exercise that right.

Baker J also stated that wherever possible concerns about the deprivation of liberty should be resolved informally, including under the review process in Part 8 of Schedule A1. However as deprivation of liberty is at stake people should not be discouraged from making an application to the court if it proves impossible to resolve concerns satisfactorily through other means. This is in line with the pre-existing guidance in chapter 10 of the DoLS Code of Practice.

Practical Guidance

Baker J went on at paragraph 86 to suggest an approach to be adopted by RPR's and IMCAs which he acknowledged drew heavily on the guidance proposed by those representing the RPRs/IMCAs and Bevan Brittan LLP's submissions on behalf of Bristol CCG. This guidance is set out in full below:

 (1) The RPR must consider whether P wishes, or would wish to apply to the Court of Protection. This involves the following steps:

(a) Consider whether P has capacity to ask to issue proceedings. This 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. It is a lower threshold than the capacity to conduct proceedings.

(b) If P does not have such capacity, consider 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.

 (2) In considering P's stated preferences, regard should be had to:

(a) Any statements made by P about his/her wishes and feelings in relation to issuing proceedings;

(b) Any statements made by P about his/her residence in care;

(c) P's expressions of his/her emotional state;

(d) The frequency with which he/she objects to the placement or asks to leave;

(e) The consistency of his/her express wishes or emotional state; and

(f) The potential alternative reasons for his/her express wishes.

(3) In considering whether P's behaviour constitutes an objection regard should be had to:

(a) The possible reasons for P's behaviour;

(b) Whether P is being medicated for depression or being sedated;

(c) Whether P actively tries to leave the care home;

(d) Whether P takes preparatory steps to leave, e.g. packing bags

(e) P's demeanour and relationship with staff;

(f) Any records of challenging behaviour and the triggers for such behaviour;

(g) Whether P's behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements.

(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 whether 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 to 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.

Comment

This judgment will provide some much needed guidance to RPRs and s.39D IMCAs and should ensure a more consistent approach to s.21A applications nationally. But it remains to be seen how the guidance will be applied in practice and there is still scope for variations in approach. In particular:

• The distinction between identifying P's wishes from his/her words and behaviour and identifying what P's wishes would be where P is unable to communicate them is not completely clear. We suggest that the latter involves a wider enquiry including information that is not immediately clear or obvious from P's statements or behaviour. This might include considering aspects of P's pre-morbid personality or historical statements made by P where evidence regarding these matters is available.

• The guidance requires RPRs and s.39D IMCAs to consider and weigh inconsistent statements or behaviour but does set out how to do this.

• Baker J is clear that the test is whether P's statement or behaviour evidence a wish to apply to the Court of Protection rather than simply an objection to residence and care. However RPR's and s.39D IMCAs will need to consider when it is appropriate to infer a wish to apply from evidence of objections to residence and care.

Applying this guidance in practice arguably entails more onerous responsibilities for paid advocates. RPRs and s.39D IMCAs are now specifically required to assess capacity which may require additional training. Furthermore the guidance clearly envisages multiple meetings with P and other stakeholders in P's care in order to identify P's wishes which is likely to place additional pressure on already stretched services.

However overall a reduction in s.21A applications is anticipated now that there is a framework to aid decision making. We may also see an increase in Part 8 reviews given Baker J's comments that concerns about the deprivation of liberty should be resolved informally where possible.