Kathryn Kember looks at the important implications a recent Court of Protection case may have for both legal and social care professionals who are regularly involved in s21A proceedings.
Facts of DP v London Borough of Hillingdon  EWCOP 45
DP is a 72-year-old gentleman with a diagnosis of organic personality disorder and catatonic disorder. He had been a resident at NN care home since June 2004.
A standard authorisation was granted on 17 September 2019 to authorise the deprivation of DP’s liberty. DP challenged the standard authorisation on the basis that he wished to live near his friend, Bill, in West Drayton and not the care home.
An application was brought on his behalf pursuant to s21A Mental Capacity Act 2005 to challenge his deprivation of liberty. The grounds accompanying the application raised questions around DP’s capacity.
Upon receiving the application papers the first instance judge made interim declarations pursuant to section 48 of the Mental Capacity Act 2005 that DP may lack capacity to conduct proceedings, make decisions about his care, and make decisions about his place of residence, although noting at a hearing on 6 May 2020 that the capacity evidence was deficient.
DP successfully appealed the interim declarations in place on the basis that the judge had incorrectly applied section 48 instead of section 21A Mental Capacity Act 2005.
Section 48 Declarations
On appeal Hayden J noted that a section 21A application is different and distinct from a personal welfare application made under section 16 of the Mental Capacity Act. Article 5(4) ECHR requires the court to determine personal welfare applications as a matter of urgency because there is no authorisation in place.
For section 21A applications however the court is required to evaluate and review the relevant qualifying requirements of the standard authorisation in force; there is no urgency as the person’s deprivation of liberty has already been authorised without further action of the court.
At paragraphs 39 of his judgment, Hayden J concluded that section 48 orders do not usually need to be made in section 21A proceedings, as the existing DoLS authorisation authorises the deprivation of liberty, however he did say that there may be cases where s48 orders are still required when there is a “clear evidential basis to do so”. He further went on to explain at paragraph 40 that, despite common practice, section 48 itself does not permit the making of interim declarations “…Thus, the Court’s finding that there is reason to believe that P lacks capacity ought, strictly, not to be phrased in declaratory terms”.
At paragraph 41 Hayden J stated:
“It is the duty of the court to determine whether the mental capacity requirement is met. If, as here, the judge was uncertain, then the obligation on the court was to investigate it further and to do so “speedily”, to adopt the word used in Article 5(4). Of course, in Section 21A applications the court will always and of necessity have a capacity assessment before it. It was open to the Deputy District Judge, for example, to permit questions to be put to Dr Longe and/or, if necessary, to arrange for him to give evidence or revisit his assessment. I doubt that it was necessary to instruct a further expert on what is, when properly identified, an essentially uncomplicated issue i.e. does DP have capacity to decide to change care homes to be nearer to his friend Bill and, if not, whether it is in his best interests to do so.”
He then went on to quote the European Court of Human Rights case of Sýkora v The Czech Republic, 22 November 2012 at paragraph 103:
“any deprivation or limitation of legal capacity must be based on sufficiently reliable and conclusive evidence. An expert medical report should explain what kind of actions the applicant is unable to understand or control and what the consequences of his illness are for his social life, health, pecuniary interests, and so on. The degree of the applicant’s incapacity should be addressed in sufficient detail by the medical reports.”
Threshold for s48 Orders
Whilst noting that it was beyond the scope of the appeal, Hayden J went on to provide some comments to assist practitioners when deciding whether a section 48 order was required within proceedings. These comments are summarised at paragraph 62 of his judgment:
i. The words of the Statute in Section 48 require no gloss;
ii. The question for the Court remains throughout: is there reason to believe P lacks capacity?;
iii. That question stimulates an evidential enquiry in which the entire canvas of the available evidence requires to be scrutinised;
iv. Section 48 is a permissive provision in the context of an emergency jurisdiction which can only result in an order being made where it is identifiably in P’s best interests;
v. The presumption of capacity applies with equal force when considering an interim order pursuant to Section 48 as in a declaration pursuant to Section 15;
vi. The exercise required by Section 48 is different from that set out in Section 15. The former requires a focus on whether the evidence establishes reasonable grounds to believe that P may lack capacity, the latter requires an evaluation as to whether P, in fact, lacks capacity;
vii. The court does not become responsible for authorising P’s Deprivation of Liberty upon issuing of a Section 21A application. The court’s function is to review the authorisation which is in force;
viii. The objective of Section 48 is neither restrictive, in the sense that it requires a high level of proof, nor facilitative, in the sense that it is to be regarded as a perfunctory gateway to a protective regime; and
ix. There is a balancing exercise in which the Court is required to confront the tension between supporting autonomous adult decision making and to avoid imperilling the safety and well-being of those persons whom the Act and the judges are charged with protecting.
This case provides clarity on how judges should approach section 21A proceedings and emphasises the need for the court to “speedily” investigate cases where mental capacity evidence is unclear. It also seems to mark the end of drafting interim declarations for case management orders in these types of proceedings.
One issue that this case raises is that, as a matter of practice, standard authorisations tend to focus on residence and care, with other restrictions around contact, sex, social media usage etc. being separately detailed in alternative care plans and subsequently authorised by interim orders.
This case however suggests a reluctance to make interim orders in section 21A proceedings. Best interests assessors may therefore need to be more comprehensive in their mental capacity and best interests assessments to ensure that all the appropriate capacity domains and restrictions are covered by the standard authorisation in place to ensure they are correctly authorised.
Kathryn Kember is a solicitor at Invicta Law.