In this case, Mr Justice Hayden granted permission to DP to appeal, and allowed the appeal, of an interim declaration under s.48 of the Mental Capacity Act 2005 that DP lacked capacity to make decisions as to his care and residence.
This case provides a helpful reminder as to fundamental aspects of any assessment of capacity – and clarification on the authorisation of any deprivation of P’s liberty where a s.21A application is brought. It also heralds a change in the approach of practitioners on the procedural approach where there is reason to believe that P lacks capacity in s.21A proceedings.
For capacity assessments:
- The nature of and reason for the assessment should be communicated to P (and a record of such communication should be included in the assessment documentation).
- Failing to inform P of what the capacity assessment is actually assessing will likely “gravely undermine” the reliability of any conclusion you reach.
- It is helpful to include the qualifications, expertise and experience of the person assessing capacity on the face of the capacity assessment (N.B. The DoLS Form 4 does not prompt this information to be completed).
- Be clear about the issue that you are assessing capacity of.
- Ensure that the description/record of your assessment is full and complete, setting out:
- what relevant information is given to P;
- what questions are posed; and
- what responses are received.
This will assist in demonstrating your reasoning.
- Do not conflate the issue of best interests with the determination of capacity.
- Clearly explore P’s wishes and feelings in relation to the issues at stake.
- Ensure all of your conclusions are carefully considered and reasoned.
- The presumption of capacity applies at all stages in the operation of the Mental Capacity Act 2005 – including, when considering interim orders.
Authorisation of deprivation of liberty whilst s.21A proceedings are ongoing:
- The Standard Authorisation remains the lawful authorisation of the deprivation of liberty.
- The Court doesn’t “take over” the authorisation of P’s deprivation of liberty in s.21A applications.
- The Court can extend a Standard Authorisation or vary its conditions or terminate it.
Procedurally, in relation to the interim provisions under s.48 in s.21A proceedings:
- The Court’s satisfaction of there being reasonable grounds to believe that P lacks capacity (the interim threshold regarding capacity) should not be set out as an interim declaration under s.48.
- It could be set out in a recital.
- In satisfying itself of the interim threshold regarding capacity, the Court should conduct “a broad survey of all the available evidence, including hearsay evidence, which, inevitably, will have varying cogency and weight.”
- As such, the Court can be satisfied of the interim threshold regarding capacity, even where there is no professional evidence yet available on P’s capacity.
- Interim orders under s.48 should only be made to gather further information if there is a sufficiently clear evidential basis to do so. The Court must be satisfied that any such interim order is in P’s best interests.
You can read the full case summary below.
DP v London Borough of Hillingdon  EWCOP 45
- Capacity assessments
- Interim powers under s.48
- 21A applications
- Mental Capacity Act 2005 (‘the ‘MCA’)
DP is aged 72 and has a diagnosis of organic personality disorder and associated catatonic disorder, secondary to a stroke. He resides at a care home and requires assistance with most aspects of daily living, however he can mobilise independently for short distances and can feed himself, save when catatonic.
The London Borough of Hillingdon granted a standard authorisation to deprive DP of his liberty at the care home. A capacity assessment concluded that DP lacks capacity to decide whether to reside in the care home; DP was able to understand and retain the relevant information, but unable to use or weigh up that information or communicate his decision. The capacity assessment did not address whether or not DP was able to evaluate any available options relating to his care and residence.
An application under s.21A of the MCA was made on DP’s behalf by his accredited legal representative to terminate the standard authorisation. In her judgment, Deputy District Judge Chanal concluded that there was sufficient evidence to make an interim declaration under s.48 of the MCA that DP lacked capacity to make decisions as to his care and residence, with directions for further evidence on capacity, but did not address the issue of whether DP’s standard authorisation should be terminated. An application was made on behalf of DP for permission to appeal against this decision, which was heard by Mr Justice Hayden.
Mr Justice Hayden found that the capacity assessment was deficient as the assessor:
a) had not explained the purpose of his assessment;
b) did not discuss P’s wish to move residence; and
c) gave unclear reasoning for reaching his conclusions.
Permission to appeal was granted and the appeal was allowed on the ground that the first instance judge wrongly approached the questions of whether to make a declaration of incapacity as a best interests decision.
Mr Justice Hayden emphasised that the purpose of a s.21A application is to either vary or discharge a deprivation of liberty authorisation. The Court’s only function is to review the authorisation which is in force.
It remains to be seen how this case will apply to:
- interim declarations regarding lawfulness (as opposed to capacity); and
- non-s.21A proceedings (e.g. s.16 welfare applications).
The submissions about the scope of s.48 in relation to declarations were not argued before the Court (as the parties were in agreement on the issue). There may be further case law considering the scope of s.48 in relation to declarations and the scope of Rule 10.10 of the Court of Protection Rules 2017 regarding interim remedies.
Other Key Findings
Procedurally, this case has given important guidance on the approach in relation to s.21A applications and the interim provisions under s.48 in such applications:
- 21A proceedings are a route by which the Court determines whether the “qualifying requirements” for a Standard Authorisation are met, and subsequently either allows the Standard Authorisation to continue, varies it or terminates it.
- The Court does not take on responsibility for authorising any deprivation of liberty when s.21A proceedings are commenced.
- The Court decides whether a standard authorisation should continue or stop; and if continue, whether variations should be made to the conditions relating to it.
- 21A proceedings ought to be determined speedily to comply with Article 5(4) ECHR
- 48 is a permissive provision in the context of an emergency jurisdiction, which can only result in an order being made where it is in P’s best interests.
- For an interim order under s.48 to be made, the Court must be satisfied that:
- there are reasonable grounds to believe P lacks capacity (based on proper consideration and evaluation of all the available evidence); and
- it is in P’s best interests to make the order and give the directions without delay.
- The threshold of “reason to believe that P lacks capacity” requires no gloss – it stimulates an “evidential inquiry” where the Court scrutinises the “entire canvass” of available evidence.
S.48 is neither perfunctory nor restrictive.