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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> AJ (Deprivation Of Liberty Safeguards) [2015] EWCOP 5 (10 February 2015) URL: https://www.bailii.org/ew/cases/EWCOP/2015/5.html Cite as: [2015] COPLR 167, [2015] EWCOP 5, (2015) 18 CCL Rep 158, [2015] WLR(D) 64, 18 CCL Rep 158, [2015] 3 WLR 683, [2015] Fam 291 |
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representatives
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IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF
AJ
(
DEPRIVATION
OF
LIBERTY
SAFEGUARDS)
Strand, London, WC2A 2LL |
||
2015 |
B e f o r e :
____________________
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005 AND IN THE MATTER OF AJ ( DEPRIVATION OF LIBERTY SAFEGUARDS) AJ(by her litigation friend the Official Solicitor) |
Applicant |
|
| - and - |
||
| A LOCAL AUTHORITY |
Respondent |
____________________
Michael Dooley (of the Local Authority Legal Unit) for the
Respondent
Hearing dates: 20th and 21st May 2014
____________________
Crown Copyright ©
THE HONOURABLE MR JUSTICE BAKER:
INTRODUCTION
deprivation
of
liberty.
The provisions under consideration include the selection and appointment of
relevant
person's
representatives
under Part 10 of Schedule A1 and independent mental capacity advocates under s.39D which have not, so far as I am aware, been considered in any previous judgment. More fundamentally, the case addresses the question of the extent of the duty on a local authority to ensure that a person who lacks capacity is able to challenge a
deprivation
of their
liberty.
BACKGROUND
AJ
is now aged 88. She has lived in her local area all her life. In 2002, she moved to live in an annexe of the home of her niece and her husband (hereafter
referred
to as "Mr and Mrs C"). Like many elderly people,
AJ
sadly developed vascular dementia and became increasingly dependent on others, in particular Mrs. C. She was, however, very
reluctant
to acknowledge her condition, and insistent that she could manage without any help. On one occasion, when Mr and Mrs. C went away on holiday leaving arrangements for carers to visit the property,
AJ
refused
to cooperate, leaving her keys in the door so that the carers could not get in, and declining offers of personal assistance.
AJ
signed Lasting Powers of Attorney ("LPAs") in
respect
of both health and welfare and property and financial affairs naming Mr. and Mrs. C as donees. No challenge is made as to the validity of either LPA.
AJ
was
referred
to social services by a psychiatric nurse. When a local authority case co-ordinator visited on 22nd April 2013, Mrs. C raised the possibility of
respite
care for
AJ
to prevent the breakdown of the care arrangements. When the social worker visited again on 16th May, Mrs. C told her that
AJ
was still
refusing
help, and had now developed a problem with swallowing. At that point, the case was transferred to another social worker, "Ms B", a member of the early intervention service. When Ms B telephoned on 21st May, Mrs C told her she thought that
AJ
was no longer safe at home because she was not eating and drinking. She added, however, that
AJ
would not willingly go into a
residential
home. In her statement for these proceedings, Ms B says that she "discussed arranging a meeting to assess
AJ
with a
Deprivation
of
Liberty
Safeguards
assessor as it was apparent
AJ,
if placed in a care home for
respite,
may be considered as
deprived
of her
liberty".
5th
June, Ms B made a home visit with another social worker. Mrs. C made it clear that she could not continue with her caring role in its current form as she and her husband had planned a fortnight's holiday starting 15th June. Mrs. C said that she now felt that permanent
residential
care was
required.
AJ
was still not eating properly and had lost a lot of weight, and was continuing to
resist
offers of help. Mrs. C said she was exhausted in her caring role. Ms B offered to find the nearest suitable home for
respite
while Mr. and Mrs. C were away, and duly identified a home, X House, for that purpose. In her statement, she states: "it was hoped that if
AJ
settled she could
remain
in the care home on a permanent basis".
AJ
had
recently
executed. On 29th May, the LPAs were
registered
with the Office of the Public Guardian.
AJ
to X House. Upon arrival, she stated that she did not wish to be there and
repeatedly
asked to leave. No assessment under the
Deprivation
of
Liberty
Safeguards
("DOLS") under Schedule A1 of the Mental Capacity Act 2005 ("MCA") had been carried out prior to her arrival but an urgent authorisation under the Schedule was granted by the manager at X House on 14th June. The urgent authorisation
recorded
inter alia that
AJ
had been placed at the home whilst her main carers, Mr. and Mrs. C, went on holiday for two weeks, "with a view to [
AJ]
staying here on a permanent basis". On the same day, a
request
was made to the local authority as the supervisory body for a standard authorisation.
reviewed
the care plan. She also met
AJ
who told her that she was angry about the decision that she should be accommodated. She accepted that she would be "forced" to
remain
there while her niece and her husband were away, but said she expected to go home as soon as her niece
returned
from holiday. She said that she did not need the help of anyone else, asserting that she was independent and capable of looking after herself at home without any additional care or supervision, but added that Ms G should speak to Mr. and Mrs. C.
reiterated
to her that they no longer felt it was safe for
AJ
to live at home, and told her that they wished to consider all options for her care and
residence,
and that it would be safe and proportionate for her to
remain
at X House until those matters were
resolved.
AJ
was not at that stage being
deprived
of her
liberty
because her stay at X House had been arranged for "
respite",
a
deprivation
of
liberty
was going to arise if, as anticipated,
AJ
did not
return
home when her niece and husband came back from holiday. Ms G therefore
recommended
the grant of a standard authorisation for a limited period of 21 days. In her statement for these proceedings, she explained that she had
recommended
this short period because of the uncertainty of the situation. Following this assessment, and on the basis of Ms G's
recommendation,
the local authority on the same day, 20th June 2013, granted a standard authorisation under Schedule A1 until 10th July 2013. The authorisation was subject to a condition that the managing authority under the Schedule (i.e. X House) should ensure that
AJ's
care plan did not
result
in any additional unauthorised
restrictions,
should monitor and manage the
restrictions
currently in place, and notify the supervisory body under the Schedule (i.e. the local authority) of any changes to the care plan immediately with a
request
for a
review.
result
of her meeting with
AJ,
Ms G formed the view that she lacked the capacity to appoint a
representative
("
relevant
person's
representative",
hereafter "RPR", under Part 10 of Schedule A1, discussed below). Having discussed this aspect with Mr. and Mrs. C in the course of their conversations, Ms G concluded that Mr. C should be appointed as RPR.
referred
AJ
to the supervisory body for the appointment of an IMCA under s. 39D of the Act. She completed a standard form, headed "IMCA
referral
form", and under the heading "Part B – type of IMCA
referral"
put a cross in the box numbered B8 next to the words on the form
reading
"39D – the supervisory body believes that the person
deprived
of their
liberty
and their unpaid
representative
relevant
person's
representative
will both benefit from the support of an advocate". On 24th June, Mr. R was appointed to act as
AJ's
IMCA.
safeguarding
senior practitioner and attended by, inter alia, Ms B and Mr. and Mrs. C. The minutes
record
Mrs. C
reiterating
the difficulties they had experienced caring for
AJ;
that the chair asked if
AJ
had ever expressed any wish not to go into care; that Mr. and Mrs. C explained that she had never vocalised her wishes but they knew that she would not want to; but that Mr. and Mrs. C felt that permanent care would be the best option. Those attending the meeting agreed that it was in
AJ's
best interests to
remain
in care, but that she should move to another home – hereafter "Y House" – which was better suited for her needs.
Representative"
indicating that
AJ
had a donee whose authority under the LPA permitted them to select a family member, friend of carer to be their RPR, that the donee had selected Mr. C to act in that capacity, that he was eligible to be appointed, and that she, Ms G, therefore
recommended
his appointment.
AJ
moved to Y House where she has
remained
ever since. In preparation for a further best interests assessment, Ms G visited Y House on 9th July where she saw
AJ
who said "when can I go home – can you help me?" When told of the decision of Mr and Mrs. C that she should
remain
at Y House, she
replied
"bullshit, I will not, I am going home". Ms G concluded that
AJ
objected strongly to the decision made for her and was able to articulate her feelings clearly. In her second assessment dated 10th July, Ms G confirmed that
AJ
was being
deprived
of her
liberty,
that the
restrictions
were necessary to prevent harm, that the care plan and
restrictions
on her
liberty
were in her best interests, and that the authorisation should be
renewed
for a period of six weeks. She completed a further "Selection of a
Representative"
form
recording
that the donees under the LPA had selected Mr. C to act as RPR, again confirming that he was eligible, and
recommending
his appointment. On the same date, the local authority as supervisory body
renewed
the standard authorisation until 21st August 2013, on the basis of the same conditions as set out in the earlier authorisation.
received
a message to speak to a friend of
AJ,
hereafter
referred
to as "ND". When she
returned
his call, he expressed the view that
AJ
had been "dumped" at Y House. Ms B told him that the correct process had been followed and that, as he was not
AJ's
next of kin, her needs could not be discussed further with him.
repeated,
and a third authorisation granted, this time for a period of six months. In addition to the earlier conditions, which were
repeated
again, the authorisation granted on 21st August also included conditions that for the duration of the authorisation the managing authority should enable
AJ
greater opportunity to exercise her Article 8 rights, and to that end consider ways to support her to access her local community, and keep an activity log to facilitate subsequent
reviews.
AJ's
known opposition to living at Y House, no legal challenge was made to the standard authorisations for several months. The
reasons
for this failure lie at the heart of this case. The evidence clearly demonstrates that during this period there was no effective communication between Mr. C as RPR and Mr R, the IMCA. Mr. R first visited
AJ
on 31st July 2013, and then spoke on 6th August to Ms G who was in the course of carrying out her third best interests assessment. According to the BIA, he told her that he had yet to make contact with Mr. C, whereupon she advised him that Mr. C was keen to discuss his role as RPR as soon as possible. Ms G and Mr. R then went to see
AJ
together on 19th August. After that meeting, according to Ms G, Mr. R said was unsure if he would pursue an appeal for
AJ
at that time. When she asked about this uncertainty, he
replied
that it was not uncommon for many older people in care to state a desire to
return
home and that judgments about any appeal were difficult for IMCAs when it is apparent that they need
residential
care. According to Ms G, however, Mr. R acknowledged that the strength of
AJ's
objection indicated a need to pursue some action and that he would first wish to speak to Mr. C as RPR. In his evidence, Mr R could not
recall
saying he was "unsure" about pursuing an appeal, although he told the court that he was aware of inconsistency in patients'
responses
in these situations. After this, Mr. R was away on sick leave for some time and then on annual leave. He tried to contact Mr. C twice on 9th October and again on
5th
November before finally succeeding in speaking to him on 7th November. It was Mr. C's evidence that he wanted to speak to the IMCA, but Mr. R told the court that he was unaware that Mr. C was keen to speak to him. When they finally spoke, Mr. R
realised
that Mr. C was not going to initiate proceedings and after further conversations with his manager he agreed to act as her litigation friend and instruct solicitors to make an application to the Court on her behalf.
AJ
had been admitted into
residential
care, an application was finally filed by
AJ
through Mr. R acting as her litigation friend, challenging the standard authorisation dated 21st August 2013. Initial directions were given by District Judge Batten on 23rd December, including provision for an early hearing before HHJ Tyzack QC in Exeter. That hearing took place on 7th February 2014 when the learned judge extended the authorisation until the next hearing and gave further directions.
AJ
through her litigation friend filed particulars of claim against the local authority for declarations and damages under s.7 of the Human Rights Act 1998. It was asserted that (a) there was, judged objectively, a
real
risk that
AJ
would be
deprived
of her
liberty
from the outset of her stay at X House; (b) a DOLS authorisation or order from the Court of Protection should have been put in place prior to her move there, or alternatively as soon as possible after her arrival; (c) the local authority should not have appointed Mr C as the RPR and should instead have appointed a paid RPR; (d) the local authority should have ensured that the s.39D IMCA was able promptly to exercise his
responsibilities
under the Act, in particular by acting as litigation friend in s.21A proceedings; (e) had the local authority taken these steps,
AJ
would have been able to challenge the interference with her rights under Articles
5
and 8 of ECHR more swiftly; (f) in the alternative, the local authority should itself have issued proceedings in the Court of Protection. It was claimed that, by
reason
of the above failures,
AJ's
rights under Article
5(4)
were unlawfully violated for the whole or part of the period 21st May to 18th November 2013, and she was unlawfully
deprived
of her
liberty
between 13th and 20th June 2013.
replaced
as litigation friend by the Official Solicitor. On 18th March, the local authority filed a defence denying the alleged breaches. On 7th April, Judge Tyzack transferred the case to me and I duly conducted a two-day hearing in Truro on 21st and 22nd May 2014. Prior to the hearing, the Official Solicitor conceded that, in view of evidence as to a deterioration in
AJ's
condition and behaviour, and to the fact that there was no domiciliary care agency willing to offer to provide care, it was no longer appropriate to put forward a positive case that she should
return
home so that the substantive application under s.21A could no longer be pursued. He added, however, that he had
residual
concerns about the type and degree of physical intervention being used, and that further investigation was
required
to ensure that this aspect of her care was expressly included in any standard authorisation or care plan approved by the Court when making an order concluding the s.21A application. In the circumstances, however, the principal issue
remaining
was the claim under s.7 HRA. Here, too, the Official Solicitor indicated a change of position, indicating that no claim for damages would be pursued, confining the claim to a declaration and costs.
reported
as
Re
X and Others (Depravation of
Liberty)
[2014]
EWCOP
25) would address a wide range of issues consequential upon the decision of the Supreme Court in P v Cheshire West and Chester Council; P and Q v Surrey County Council [2014] UKSC 19 ("Cheshire West") and I concluded that it would be prudent to await the President's judgment before
reaching
a final conclusion on the various issues that arise in this case. The supplemental material, and the further case law, gave rise to further questions which I put to the parties' advocates who duly
replied
in writing.
AJ
and Mr. Michael Dooley on behalf of the local authority. Their expertise in this area of the law is rightly well-known, and their work in this case has been of very considerable assistance.
PRELIMINARY ISSUE –
RESTRAINT
AJ's
rights under Article
5
of ECHR, I must
refer
briefly to the
residual
issue that arose during the hearing concerning the care plan, raised by the Official Solicitor, namely the type or degree of physical
restraint
used. I can deal with this issue briefly. A supplemental assessment by the BIA, Ms G, highlighted that the level of physical
restraint
being used by carers in Y House was greater than acknowledged in the care plan. Following the conclusion of the hearing, the
residential
home prepared an amended care plan for personal care interventions and indicated that it would
record
physical interventions in a daily physical intervention log at each personal care intervention. The
revised
plan does not include any specific
reference
to physical
restraint
being used, save that it is noted that, if
AJ
"starts to become physically aggressive the carers are
required
to adopt 'walls and block' stance".
restraint
is used in the care of an incapacitated adult, any physical intervention, whether considered to amount to "
restraint"
or not, should be
recorded
in the care plan maintained by the service provider and monitored by the statutory body
responsible
for commissioning the person's care. Furthermore, precise details of all physical interventions should be ascertained and documented as part of the
Deprivation
of
Liberty
Safeguards
process or indeed any best interest assessment from direct discussion with care staff implementing the interventions.
referred
to me for further
review.
GENERAL STATUTORY PROVISIONS CONCERNING
DEPRIVATION
OF
LIBERTY
recognised
that the statutory and
regulatory
provisions established under the MCA, in particular the amendments introduced by the Mental Health Act 2007, are tortuous and complex. The provisions engaged in this case are no exception, and it is
regrettably
necessary to set them out in some detail, together with
relevant
extracts from the two lengthy codes of practice, the Mental Capacity Act 2005 Code of Practice (hereafter "the MCA Code of Practice") and the Mental Capacity Act 2005: Department of
Liberty
Safeguards
Code of Practice (hereafter "the DOLS Code of Practice"). At this point, I shall set out the general provisions, followed by the case law
relevant
to those provisions. The
relevant
specific provisions concerning RPRs and IMCAs will be set out and considered later.
5
of ECHR. Article
5(1)
provides that everyone has the right to
liberty
and security of person and that no one shall be
deprived
of their
liberty
save in cases specified in the Article (which include cases involving persons of unsound mind) and in accordance with a procedure prescribed by law. Article
5(4)
provides:
"Everyone who isdeprived
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 his detention is not lawful.
The ECHR was incorporated into domestic law by the Human Rights Act 1998, s. 6 (1) of which provides that "it is unlawful for a public authority to act in a way which is compatible with a Convention right".
respect
of a person who lacks capacity ("P"). Of particular
relevance
here are subsections (
5)
and (6):
"(5)
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made,regard
must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less
restrictive
of the person's rights and freedom of action."
Section 4 identifies the factors to be taken into account when determining what is in P's best interests.
Restriction
on
deprivation
of
liberty",
provides:
"(1) This Act does not authorise any person ("D") todeprive
any other person ("P") of his
liberty.
![]()
(2) But that is subject to–
(a) the following provisions of this section, and
(b) section 4B [concerning life-sustaining treatment].
(3) D maydeprive
P of his
liberty
if, by doing so, D is giving effect to a
relevant
decision of the court.
(4) Arelevant
decision of the court is a decision made by an order under section 16(2)(a) in
relation
to a matter concerning P's personal welfare.
(5)
D may
deprive
P of his
liberty
if the
deprivation
is authorised by Schedule A1 (hospital and care home
residents:
![]()
deprivation
of
liberty)."
relation
to [P]". Under s.16(2)(a), the court "may, by making an order, make the decision or decisions on P's behalf in
relation
to", inter alia, matters
relating
to P's personal welfare. Under s.16A, however, the court may not include in a welfare order provision which authorises P to be
deprived
of his
liberty
if P is "ineligible" to be
deprived
of his
liberty
by the provisions of the Act, specifically Schedule 1A.
DOLS
deprivation
of
liberty
in cases involving a mentally incapacitated adult were introduced into the MCA by amendments passed in the Mental Health Act 2007. These amendments include a new Schedule A1 which lays down in 188 paragraphs the provisions known as the
Deprivation
of
Liberty
Safeguards
("DOLS") setting out inter alia (1) the procedure whereunder a supervisory body may authorise a
deprivation
of
liberty,
("standard authorisation"); (2) the procedure whereunder the managing authority of a care home of hospital may authorise a
deprivation
of
liberty
for the period pending the grant of a standard authorisation ("urgent authorisation"); (3) the qualifying
requirements
for making authorisations; (4) procedures for carrying out of assessments to establish whether the
requirements
are satisfied, including an assessment by a best interests assessor ("BIA"); (
5)
a process for instigating and carrying out a
review
of a standard authorisation; (6) provisions concerning "
relevant
person's
representatives"
("RPRs"); and (7) provisions concerning independent mental capacity advocates ("IMCAs"). For the purpose of this judgment, it is unnecessary to consider the majority of these provisions. Those
relating
to RPRs and IMCAs are considered below.
"in the vast majority of cases, it should be possible to plan in advance so that a standard authorisation can be obtained before thedeprivation
of
liberty
begins. There may, however, be some exceptional cases where the need for the
deprivation
of
liberty
is so urgent that it is in the best interests of the person for it to begin while the application is being considered."
It is in these circumstances that the managing authority of the hospital or home may give an urgent authorisation. Under paragraph 78 of Schedule A1, the duration of an urgent authorisation given by the managing authority of a care home of hospital pending the grant of a standard authorisation must not exceed seven days. In certain exceptional circumstances, if therequest
for a standard authorisation has not been disposed of within that period, the supervisory body at the
request
of the managing authority may extend the duration of the original urgent authorisation by no more than seven further days.
relation
to Schedule A1 are set out earlier in the Act at s.21A:
"(1) This section applies if either of the following has been given under Schedule A1–
(a) a standard authorisation;
(b) an urgent authorisation.
(2) Where a standard authorisation has been given, the court may determine any questionrelating
to any of the following matters–
(a) whether therelevant
person meets one or more of the qualifying
requirements;
![]()
(b) the period during which the standard authorisation is to be in force;
(c) the purpose for which the standard authorisation is given;
(d) the conditions subject to which the standard authorisation is given.
(3) If the court determines any question under subsection (2), the court may make an order–
(a) varying or terminating the standard authorisation, or
(b) directing the supervisory body to vary or terminate the standard authorisation.
(4) Where an urgent authorisation has been given, the court may determine any questionrelating
to any of the following matters–
(a) whether the urgent authorisation should have been given;
(b) the period during which the urgent authorisation is to be in force;
(c) the purpose for which the urgent authorisation is given.
(5)
Where the court determines any question under subsection (4), the court may make an order–
(a) varying or terminating the urgent authorisation, or
(b) directing the managing authority of therelevant
hospital or care home to vary or terminate the urgent authorisation.
(6) Where the court makes an order under subsection (3) or (5),
the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.
(7) An order under subsection (6) may, in particular, exclude a person from liability."
CASE LAW
5(4)
in this case, I have had
regard
to the case law, both European and domestic. The leading European cases are X v United Kingdom (1982) 4 EHRR 188; Winterwerp v The Netherlands (1979) 2 EHRR 387; Waite v UK [2002] ECHR 804; Shtukatarov v Russia (2012)
54
EHRR 27; Stanev v Bulgaria (2012)
55
EHRR 22, MH v UK [2013] ECHR 1008, and, most
recently,
Ivinovic v Croatia [2014] ECHR 964. From those authorities, the following principles can be summarised:
(1) "There is a positive obligation on the state to protect theliberty
of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal
liberty
in a democratic society. The state is therefore obliged to take measures providing effective protection of vulnerable persons, including
reasonable
steps to prevent a
deprivation
of
liberty
of which the authorities have or ought to have knowledge": Stanev v Bulgaria at paragraph 120.
(2) The procedurerequired
by Article
5(4)
must have a judicial character and be independent of the detaining authority: X v United Kingdom, supra, para
53,
MH v UK, supra, para 77(c).
(3) Article5(4)
guarantees a
remedy
that must be accessible to the person concerned: MH v UK, supra, para 76.
(4) The state has an obligation to ensure that a mentally incapacitated adult is afforded independentrepresentation,
enabling them to have their Convention complaints examined before a court or other independent body: Ivinovic v Croatia, supra, para 45.
(5)
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. Where a person lacks the capacity to instruct lawyers directly, the
safeguards
![]()
required
may include empowering or even
requiring
some other person to act on that person's behalf: Winterwerp v The Netherlands, supra, para 60, MH v UK, supra, paras 77(e) and 92.
(6) Article5(4)
may not be complied with where access to a court is dependent on the exercise of discretion by a third party, rather than an automatic entitlement. Where the third party supports the
deprivation
of
liberty,
![]()
reliance
on the third party to initiate proceedings may not satisfy the
requirements
of Article
5(4):
Shtukatarov v Russia, supra, para 124.
(7) An initial period of detention may be authorised by an administrative authority as an emergency measure provided it is of short duration and the individual is able to bring judicial proceedings speedily to challenge the lawfulness of any such detention including, where appropriate, its lawful justification as an emergency measure: MH v UK, supra, para 77(a).
(8) The likelihood of the judicial hearing leading torelease
from detention is irrelevant. Article
5(4)
is first and foremost a guarantee of a fair procedure for
reviewing
the lawfulness of detention – an applicant is not
required,
as a precondition of enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his
release:
Waite v UK, supra, para
59.
deprivation
of
liberty
was summarised by Peter Jackson J in Neary v LB of Hillingdon [2011] EWHC 1377 (COP) at para 202:
"… there is an obligation on the State to ensure that a persondeprived
of
liberty
is not only entitled but enabled to have the lawfulness of his detention
reviewed
speedily by a court".
recent
case of
Re
X and Others (
Deprivation
of
Liberty)
[2014]
EWCOP
25, Sir James Munby, President of the Court of Protection gave guidance on matters of practice and procedure in the Court of Protection following the judgment of the Supreme Court in the Cheshire West case. Of
relevance
to this case is the President's answer to the question whether P needs to be joined in the application to the court seeking authorisation of a
deprivation
of
liberty
and, if so, where there is a
requirement
that P must have a litigation friend. The President pointed out (at paragraph 18) that neither the COP Rules nor the ECHR
require
P to be joined as a party to the proceedings although Article
5(4)
entitles P to "take proceedings". The President continued (at paragraph 19):
"What the Conventionrequires
is that P be able to participate in the proceedings in such a way as to enable P to present their case "properly and satisfactorily": see Airie v Ireland (1980) 2 EHRR 305 para 24. More specifically, "it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of
representation,
failing which he will not have been afforded the fundamental guarantees of procedure applied in matters of
deprivation
of
liberty":
Winterweerp v Netherlands [1979] 2 EHRR 387 para 60. P should always be given the opportunity to be joined if they wish and whether joined as a party or not must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. So long as that demanding standard is met, and in my judgment it can in principle be met without P being joined as a party, there is no need for P to be a party."
requires
the permission of the court to act as an advocate on behalf of P.
THE ISSUES
AJ,
the Official Solicitor seeks a declaration that
AJ
was
deprived
of her
liberty
and that her rights under Article
5(4)
were unlawfully violated in whole or in part of the period 21 May 2013 to 18 November 2013. He submits that the local authority should have taken the following steps to comply with its obligations under Article
5:
(1) It should have sought a DOLS authorisation or a court order authorising adeprivation
of
liberty
on or around 17th May 2013 when it was known that
AJ
was to be moved to a
residential
care home against her wishes.
(2) It ought not to have appointed Mr. C as RPR at all, or at least not without ensuring that he would bring proceedings under s.21A in the light ofAJ's
known objections, or alternatively, having appointed him,
replaced
him when it became apparent that he was not going to facilitate a speedy
review
of her detention.
(3) Although Mr. R was appointed as IMCA under s.39D of the Act, the Official Solicitor raises the question whether, in the circumstances of this case, the local authority was in fact under an obligation to appoint an IMCA at all. If, in all the circumstances, it was not under an obligation to appoint an IMCA, it should nonetheless have taken steps to assistAJ
in exercising her rights. Alternatively, having appointed an IMCA, it
remained
under an obligation to monitor how the IMCA was acting in furtherance of those rights, and should have ensured that funds were available to enable the IMCA to obtain legal advice and act as litigation friend.
(4) Ultimately, if neither the RPR nor the IMCA were able or willing to issue proceedings promptly, it should have issued proceedings itself.
reply,
the local authority contends that it has fully discharged its statutory
responsibilities
as the supervisory body under Schedule A1 and provided a proportionate means of ensuring that
AJ's
Article
5(4)
rights were
safeguarded
by appointing Mr C as RPR in accordance with the
regulations
and providing him with support including the appointment of an IMCA. The local authority does not accept, in the circumstances of this case, that it should itself have started court proceedings.
THE INITIAL AUTHORISATION PROCESS
Submissions
representing
AJ,
Ms Butler-Cole submits that the local authority failed to comply with its obligations under Article
5
because the lawfulness of her
deprivation
of
liberty
was not brought before the court speedily. Counsel argues that the local authority should have sought a DOLS authorisation (or court order) authorising a
deprivation
of
liberty
on or around 17th May 2013 when it was known that
AJ
was likely to be moved to a
residential
home against her wishes. The fact that the placement was a temporary one, for the ostensible purposes of
respite,
did not obviate the
requirement
for a DOLS assessment. The council's failure to ensure that an authorisation was obtained before the period of
deprivation
of
liberty
started was contrary to the DOLS Code of Practice. Ms Butler-Cole
relies
in particular on the opening passage of Chapter 3 of the DOLS Code of Practice quoted above. In the vast majority of cases, it should be possible to plan in advance so that a standard authorisation can be obtained before the
deprivation
of
liberty
begins. It is only in exceptional cases, where the need for the
deprivation
of
liberty
is so urgent that it is in the best interests of the person for it to begin while the application is being considered, that a standard authorisation need not be sought before the
deprivation
begins. She submits that this was not such an exceptional case because the fact that a move was being contemplated was known to the local authority some weeks before it occurred. In this case, there was sufficient time for such an authorisation to be sought and obtained. There was no "emergency" in the sense identified by the ECtHR in MH v UK, supra, para 77(a).
deprivation
of
liberty
arising, the local authority is under an obligation to seek the court's approval in advance of the placement where it is known that P or someone concerned in their welfare objects to the
deprivation
of
liberty
or disputes whether any of the qualifying
requirements
for authorisation are satisfied. It is wrong simply to wait and see whether P's objection continues over a period of weeks or months.
result
of its failure to initiate the authorisation process prior to 13th June, the local authority failed to give proper consideration as to whether or not a less
restrictive
option was available, for example by examining whether
AJ
could be provided with 24 hour care.
reply,
Mr Dooley for the local authority contends that the local authority has discharged its statutory duty as supervising body under the Schedule A1. The local authority had commissioned the
respite
placement at X House having consulted with
AJ's
family carers and considered the fact that they were authorised best interest decision-makers on account of their lasting power of attorney. The decision to provide interim support by way of
respite
was made by the local authority pursuant to its statutory duties under s.47(
5)
of the National Health Service and Community Care Act 1990 and not following any decision to place
AJ
in a care home placement. Upon
AJ's
admission to X House, the managing authority had granted an urgent authorisation and the best interests assessor had subsequently completed the full assessment and
recommended
an standard authorisation for two weeks, and the appointment of Mr C as RPR.
Discussion
AJ
and that a move to permanent
residential
care was
required.
The local authority therefore knew that the move to X House was unlikely to be limited to the duration of the holiday. Furthermore, Mrs. C was completely open in telling the local authority that
AJ
would not move into any
residential
accommodation willingly. Following her telephone conversation with Mrs. C on 21st May 2013, Ms B spoke to a DOL assessor because, as she said in her statement, "it was apparent
AJ,
if placed in a care home for
respite,
may be considered as
deprived
of her
liberty".
Accordingly, the local authority knew or ought to have known from 21st May, or at the latest
5th
June, that
AJ
would be admitted into a
residential
home from on or about 15th June against her will in circumstances that were likely to amount to a
deprivation
of
liberty.
AJ
would not go willingly to X House, and that such a move would only be achieved by
depriving
her of her
liberty,
the local authority, prior to that move taking place, ought to have either carried out a DOLS assessment or made an application to the Court. During the first few days of her stay at X House, there was no authorisation in place, nor was there an RPR or an IMCA appointed to support her. The fact that the first two weeks of her stay at X House were nominally labelled as "
respite"
care cannot justify the local authority's failure either to instigate the DOLS process or apply to the court. The local authority plainly knew that Mr. and Mrs. C would not agree to
AJ
returning
home at the end of their holiday and that, whatever may have been said about
respite
care, the move was intended to be permanent from the outset.
recognises,
"it should be possible to plan in advance so that a standard authorisation can be obtained before the
deprivation
of
liberty
begins". Given the scheme of the Act is that urgent authorisations are expected to last for no more seven days save in exceptional circumstances, the local authority ought to have been able to complete the process of assessment and grant of a standard authorisation before
AJ
arrived at X House on 13th June. In the alternative, given the fact that
AJ's
objections to being placed in
residential
care were clear and well-known, the local authority could have applied straight to the Court of Protection without going through the authorisation procedure under Schedule A1. As Keehan J observed in NHS Trusts 1 and 2 v FG [2014]
EWCOP
30 at paragraph 101(iii), "the mere fact that a
deprivation
of
liberty
could be authorised under Schedule A1 does not absolve [the authority] from making an application to the court where the facts would otherwise merit it".
AJ's
care, nor was she afforded any opportunity to have her views considered, before the move to X House occurred.
AJ
by way of
respite
was made by the local authority pursuant to its statutory duties under s.47(
5)
of the National Health Service and Community Care Act 1990. The consequence of the decision was that she, an incapacitated adult, was thereby
deprived
of her
liberty.
The local authority was therefore under an obligation to comply with Article
5
and it was unlawful under s.6 of the Human Rights Act 1998 for the authority to act in a way that was incompatible with
AJ's
rights under that Article.
reasonable
steps to prevent a
deprivation
of
liberty
of which the authorities have or ought to have knowledge. In this case, the local authority was in breach of that obligation by failing either to instigate the standard authorisation procedure under Schedule A1 or alternatively apply direct to the Court of Protection in advance of
AJ's
admission to X House.
ISSUES CONCERNING THE RPR
AJ
concerns the appointment of Mr. C as RPR. It is contended that the local authority as supervisory body ought not to have appointed Mr. C as RPR at all, or at least not without ensuring that he would bring proceedings under s.21A in the light of
AJ's
known objections, or alternatively, having appointed him,
replaced
him when it became apparent that he was not going to facilitate a speedy
review
of her detention.
Statutory provisions,
regulations
and guidance
"The supervisory body must appoint a person to be therelevant
person's
representative
as soon as practicable after a standard authorisation is given."
Paragraph 140 provides:
"The selection of a person for appointment under paragraph 139 must not be made unless it appears to the person making the selection that the prospectiverepresentative
would, if appointed,
(a) maintain contact with therelevant
person;
(b)represent
the
relevant
person in matters
relating
to or connected with this Schedule, and
(c) support therelevant
person in matters
relating
to or connected with this Schedule".
regulations
concerning the appointment of RPRs. Paragraph 143 authorises the making of
regulations
about the selection of RPRs, defining those persons who may be permitted by
regulation
to make the selection – P (if he has capacity), a donee of a LPA, a deputy, a BIA or the supervisory body – and paragraph 143(3) authorises the making of
regulations
that a selection by P, a donee or a deputy would be subject to approval by a BIA or a supervisory body.
regulations
passed under this power are the Mental Capacity (
Deprivation
of
Liberty:
Appointment of
Relevant
Person's
Representative)
Regulations
2008 (hereafter "the RPR
Regulations").
Part 1 of the
regulations
concerns the selection of RPRs.
Regulation
3 provides that, in addition to any
requirements
in
regulations
6 to 9 and 11, a person can only be selected to be a
representative
if they satisfy certain criteria. These include being over 18, able to keep in contact with P, willing to act as P's
representative,
not financially interested in P's managing authority, nor a
relative
of someone so interested, nor (where as here, the managing authority is a care home) employed by or providing services to the managing authority, nor employed by the supervisory body in a role that is, or could be,
related
to P's care.
Regulations
5
to 9 are central to the issues arising in this case and should be set out in full::
"5.
Selection by the
relevant
person
(1) Where the best interests assessor determines that therelevant
person has capacity, the
relevant
person may select a family member, friend or carer.
(2) Where therelevant
person does not wish to make a selection under paragraph (1),
regulation
8 applies.
6. Selection by a donee or deputy
(1) Where
(a) the best interests assessor determines that therelevant
person lacks capacity to select a
representative;
and
(b) therelevant
person has a donee or deputy and the donee's or deputy's scope of authority permits the selection of a family member, friend or carer of the
relevant
person,
the donee of deputy may select such a person.
(2) A donee or deputy may select himself or herself to be therelevant
person's
representative.
(3) Where a donee or deputy does not wish to make a selection under paragraph (1) or (2),regulation
8 applies.
7. Confirmation of eligibility of family member, friend or carer andrecommendation
to the supervisory body
(1) The best interests assessor must confirm that a person selected underregulation
![]()
5(1)
or 6(1) or (2) is eligible to be a
representative.
(2) Where the best interests assessor confirms the selected person's eligibility under paragraph (1), the assessor mustrecommend
the appointment of that person as a
representative
to the supervisory body.
(3) Where the best interests assessor is unable to confirm the selected person's eligibility under paragraph (1), the assessor must (a) advise the person who made the selection of that decision and give thereasons
for it, and (b) invite them to make a further selection.
8. Selection by the best interests assessor
(1) The best interests assessor may select a family member, friend or carer as arepresentative
where paragraph (2) applies.
(2) The best interests assessor may make a selection where
(a) therelevant
person has the capacity to make a selection under
regulation
![]()
5(1)
but does not wish to do so;
(b) therelevant
person's donee or deputy does not wish to make a selection under
regulation
6(1) or (2); or
(c) therelevant
person lacks the capacity to make a selection and (i) does not have a donee or deputy, or (ii) has a donee or deputy but the donee's or deputy's scope of authority does not permit the selection of a
representative.
(3) Where the best interests assessor selects a person in accordance with paragraph (2), the assessor mustrecommend
that person for appointment as a
representative
to the supervisory body.
(4) But the best interests assessor must not select a person under paragraph (2) where therelevant
person, donee or deputy objects to that selection.
(5)
The best interests assessor must notify the supervisory body if they do not select a person who is eligible to be a
representative."
9. Selection by the supervisory body
"(1) Where a supervisory body is given notice underregulation
8(
5),
it may select a person to be the
representative
who
(a) would be performing the role in a professional capacity; (b) has satisfactory skills and experience to perform the
role;
(c) is not a family member, friend or carer of therelevant
person;
(d) is not employed by, or providing services to, therelevant
person's managing authority, where the
relevant
person's managing authority is a care home;
(e) ….
(f) is not employed by the supervisory body.
Regulation
9(2) makes provisions as to criminal
records
which do not arise here.
Regulation
10 makes provisions for the commencement of the appointment procedure.
Regulation
11, headed "Appointment of
representative",
provides that "except where
regulation
9 applies, a supervisory body may not appoint a
representative
unless the person is
recommended
under
regulation
7 or 8."
Regulation
12, headed "Formalities of appointing a
representative",
provides:
"(1) The offer of an appointment to arepresentative
must be made in writing and state
(a) the duties of arepresentative
to (i) maintain contact with the
relevant
person; (ii)
represent
the
relevant
person in matters
relating
to, or connected with, the
deprivation
of
liberty,
and (iii) support the
relevant
person in matters
relating
to, or connected with, the
deprivation
of
liberty,
and
(b) the length of the period of appointment.
(2) Therepresentative
must inform the supervisory body in writing that they are willing to accept the appointment and that they have understood the duties set out in sub-paragraph (1)(a).
(3) The appointment must be for the period of the standard authorisation.
(4) The supervisory body must send copies of the written appointment to (a) the appointed person; (b) therelevant
person; (c) the
relevant
person's managing authority; (d) any donee or deputy of the
relevant
person; (e) any IMCA appointed in accordance with ss 37 to 39D of the Act, involved in the
relevant
person's case, and (f) every interested person named by the best interests assessor in their
report
as somebody the assessor has consulted in carrying out the assessment."
Regulation
13 is headed "Termination of
representative's
appointment" and provides that "a person ceases to be a
representative
if
(a) the person dies;
(b) the person informs the supervisory body that they are no longer willing to continue asrepresentative;
(c) the period of the appointment ends;
(d) arelevant
person who has selected a family member, friend or carer under
regulation
![]()
5(1)
who has been appointed as their
representative
informs the supervisory body that they object to the person continuing to be a
representative;
(e) a donee or deputy who has selected a family member, friend or carer of therelevant
person under
regulation
6(1) who has been appointed as a
representative
informs the supervisory body that they object to the person continuing to be a
representative;
(f) the supervisory body terminates the appointment because it is satisfied that therepresentative
is not maintaining sufficient contact with the
relevant
person in order to support and
represent
them;
(g) the supervisory body terminates the appointment because it is satisfied that therepresentative
is not acting in the best interests of the
relevant
person, or
(h) the supervisory body terminates the appointment because it is satisfied that therepresentative
is no longer eligible or was not eligible at the time of appointment to be a
representative."
Relevant
Person's
Representative?"
gives further guidance. Paragraph 7.2 states:
"The role of therelevant
person's
representative,
once appointed, is
- to maintain contact with the
relevant
person, and
- to
represent
and support the
relevant
person in all matters
relating
to the
deprivation
of
liberty
standards, including, if appropriate, triggering a
review,
using an organisation's complaints procedure on the person's behalf or making an application to the Court of Protection.
This is a crucial role in thedeprivation
of
liberty
process, providing the
relevant
person with
representation
and support that it independent of the commissioners and providers of the services they are
receiving."
reiterate
and in some
respects
amplify the provisions as to eligibility, selection and appointment set out in the
regulations.
Paragraph 7.6
repeats
the factors in
repeats
in
regulation
3, saying that a person must meet them "to be eligible" to be the RPR. Paragraph 7.7 describes these factors as "the eligibility criteria". Paragraph 7.14 says:
"It is up to the best interests assessor to confirm whether anyrepresentative
proposed by the
relevant
person, a donee or a deputy is eligible. If the best interests assess decides that a proposed
representative
is not eligible, they must advise the person who made the selection and invite them to make a further selection."
"If neither therelevant
person, nor a donee or deputy, selects an eligible person, then the best interests assessor must consider whether they are able to identify someone eligible who could act as the
relevant
person's
representative."
"In making arecommendation,
the assessor should consider, and balance, factors such as:
- Does the
relevant
person have a preference?
- If they do not have the capacity to express a preference now, is there any written statement made by the
relevant
person when they had capacity that indicates who they may now want to be their
representative?
![]()
- Will the proposed
representative
be able to keep in contact with the
relevant
person?
- Does the
relevant
person appear to trust and feel comfortable with the proposed
representative?
![]()
- Would the proposed
representative
be able to
represent
the
relevant
person effectively?
- Is the proposed
representative
likely to
represent
the
relevant
person's best interests?"
Paragraph 7.17 adds: "It should not be assumed that therepresentative
needs to be someone who supports the
deprivation
of
liberty.".
![]()
residential
home, in the first instance, to monitor the level of contact between the RPR and P, and inform the supervisory body if the level of contact is not appropriate.
Evidence on the selection and appointment of the RPR
Representative"
was completed by Ms G and stated that the selection of Mr. C as RPR was made by the donees of the LPA. The evidence, however, gives a slightly different picture. In her statement, Ms G explained that, when she had asked
AJ
who she would like to
represent
her, for example in an appeal to the Court,
AJ
had told her to speak to Mr. C. In her assessment, Mr. C met the statutory criteria for appointment, and appeared to have a good grasp of the role and
responsibilities,
including the need to keep in contact with
AJ
and to support and
represent
AJ
in all matters
relating
to the DOLS. Her statement continues:
"I spoke to him at length about the importance of an appeal and the RPR's role in making an application to the Court of Protection. Mr. C advised me that he understood theresponsibilities
of the RPR and would approach the Court if he were asked to, either directly by
AJ
or if he felt this were necessary. He told me he understood the role, and also the conflict that he and others must face where the RPR's wish to protect a loved one sits in incongruity with the
relevant
person's wish for
liberty.
To support him as RPR, I suggested that in [this county] BIAs would automatically appoint an IMCA-39D [to] help in managing this tension. When I asked Mr. C if he would accept IMCA support, he
readily
agreed, telling me that this would be helpful to him."
AJ
at home, and suggested that the move to Y House would provide her with the skilled care she needed. When Ms G saw
AJ,
however, she continued to insist that she could look after herself and objected strongly to her admission to Y House. Ms G spoke again to Mr. C about his position as RPR, and he
reiterated
that he understood the role including the need to consider complaint and appeal, and that he was keen to have the support of an IMCA to advise him in his role as RPR.
AJ
at Y House.
AJ
was consistent in her view that she could look after herself and her objection to being admitted to Y House, but, according to Ms G's statement, when asked if she wished to appeal,
"she declined this, asking instead to speak to Mr. and Mrs. C first.AJ
did not appear to understand the
relevant
information about the appeal process, and specifically that she is subject to DOLS."
AJ
raised no objection to Mr C acting as her RPR, and declined the suggestion of someone independent acting in that role, although Ms G formed the view that
AJ
lacked the capacity to decide on his role at that time. According to Ms G, Mr. R did not raise any concerns or objections about the selection of Mr. C as RPR. He advised her that he was 'not sure' if he would pursue any appeal for
AJ
at this time, stating that he would need to meet with
AJ
again to discuss her views and also to consult with her RPR. In an addendum statement, Ms G gave further detail about this conversation. When she asked Mr. R what he was uncertain about, he
replied
that it was not uncommon for many older people in care to state a desire to
return
home and that judgments about any appeal were difficult for IMCAs when it is apparent that the person
requires
residential
care. According to Ms G, Mr. R then acknowledged that the strength of
AJ's
objection indicated a need to pursue some action and that he would wish to speak to the RPR about this. When Ms G spoke to Mr. C again, he told her that his and his wife's views were unchanged. He said he was still willing to act as RPR, although he had yet to speak to the IMCA and was keen to do so to discuss the support available to him in his role as RPR.
AJ
objected to being in care, but that she was adamant that she didn't want to use her right to appeal. She wanted nothing to do with lawyers, but rather wanted Mr. and Mrs C to do what they could to get her out.
response
to the assertion by the Official Solicitor that the local authority should not have appointed Mr. C as the RPR, Mr. and Mrs. C commented as follows:
"… while [Mr. C] does not have a view on whether this was a correct or incorrect decision, thereasons
for not assisting the appellant to exercise her right to
review
by the court was because he was aware of the complete background to the case, the extensive medical professional involvement and the outcome of a multi-disciplinary best interests meeting; the conclusions of all being that
AJ
![]()
required
significant care despite her likely objection. Although [Mr. and Mrs C] absolutely agree to the right of an individual to challenge any
deprivation
of
liberty,
it would appear that bringing this case gave no consideration to the personal medical needs of
AJ
but rather based itself upon the view of an individual who had no knowledge of
AJ
and has visited her on only four occasions. Indeed, [Mr. and Mrs C] stated from the very outset that
AJ
would object to being in care but it would appear that these considerations were not given credence."
responsibility
to arrange
representation
for
AJ
if she decided she wanted to go to court. He said that he immediately
recognised
that there was a potential conflict of interest as he had been a party to the decision
resulting
in her placement in the home in her best interests. He said that he raised this at the outset and Ms G indicated that she would immediately arrange for the appointment of an IMCA.
AJ
on several occasions. She consistently told him, and others, that she wanted to leave Y House and go home. It is Mr. C's evidence, however, that when he explained to her that it would be necessary for her to apply to the court and asked her whether she wanted him to arrange this, she consistently said that she did not wish to involve the court. In his statement, Mr. C said that no one told him that he should be seeking to issue an application for
AJ
notwithstanding her wish not to go through the court process, and that it never occurred to him to make an application against her wishes. In oral evidence, he said that no one had told him that
AJ
would be entitled to non-means-tested legal aid to appeal under s.21A.
reiterated
that when asked
AJ
had said that she did not want to involve the court. He frankly acknowledged, however, that if he had asked her "do you want me to do what I can to get you home?" she would have answered yes, but he never phrased the question that way. He said that he did not object to the IMCA instigating proceedings, adding "he came to it from a single point of view – her desire not to be in care – without our understanding of why she had gone into care in the first place." Mr C said he could not see what an appeal to the Court would generate for
AJ.
Submissions
AJ's
known objections, or alternatively, having appointed him,
replaced
him when it became apparent that he was not going to facilitate a speedy
review
of her detention. The local authority, however,
rejects
these arguments, contending that it did all that could
reasonably
have been expected in appointing Mr. C to the role. Mr. Dooley submits that it was not open to the local authority as supervisory body to
refuse
to appoint Mr. C as RPR. He argues that, although the supervisory body appoints the RPR, its power to select the RPR is confined to the circumstances defined in
regulation
9 – that is to say, it only arises if the RPR has not been selected under
regulations
5
to 8 by the
relevant
person, or a donee under a LPA, or a deputy, or the BIA. Mr. Dooley submits that, if a RPR is selected under one of those
regulations,
the supervisory body is under a duty to appoint that person. In those circumstances, he contends that the decision to appoint Mr. C was one which the supervisory body was
required
to make by the statutory provisions.
regulations.
regulation
3(1) (a) to (h) of the RPR
regulations
but also meet the
requirements
set out in paragraph 140 of Schedule A1. When selecting the RPR, the person making the selection must be satisfied not only under
regulation
3 that, as a matter of fact, the person under consideration is over 18, able to keep in contact with P, willing to act as P's
representative,
not financially interested in P's managing authority, nor a
relative
of someone so interested, nor (where as here, the managing authority is a care home) employed by or providing services to the managing authority, nor employed by the supervisory body in a role that is, or could be,
related
to P's care. In addition, the person making the selection must, under paragraph 140 of the Schedule, make a judgment as to whether the person under consideration for appointment would maintain contact with P,
represent
P in matters
relating
to or connected with this Schedule, and support P in matters
relating
to or connected with this Schedule. Invited by the Court to define the meaning of the words "eligible" and "eligibility" in the
regulations,
the Official Solicitor argued that they encompass not only the factors listed in
regulation
3 but also the
requirements
of paragraph 140. In support of this interpretation, Ms Butler-Cole drew attention to the terms of
regulation
7(2) which stipulate that, where the BIA confirms the selected person's eligibility, he or she must
recommend
that person for appointment to the supervisory body. As paragraph 140 provides that the selection must not be made unless it appears to the person making the selection that the prospective
representative
would comply with the
requirements
of that paragraph, those
requirements
must be included within the meaning of "eligibility" in
regulation
7(2).
regulation
8 or the supervisory body under
regulation
9, (or indeed P himself under
regulation
6 or a donee under an LPA under
regulation
6) that person is bound by paragraph 140. Ms Butler-Cole interpreted the evidence as indicating that Ms G made the selection herself. She was not merely confirming Mr. C's self-selection. Whoever was making the selection, whether it was Mr. C or Ms G herself, the intention behind
regulations
7 and 8 is to ensure that the BIA provides an independent check on the proposed RPR, including by ensuring that the provisions of paragraph 140 of the Schedule are satisfied.
regard
to the
requirement
to ensure that incapacitated adults are assisted to exercise their Article
5(4)
rights – both by
reference
to the European jurisprudence and the very purpose of RPRs within the DOLS framework – it would risk violating the Convention to select, confirm or appoint an RPR who did not meet the paragraph 140 criteria. As a
result,
the supervisory body is
required
to apply its mind as to whether those criteria are satisfied prior to appointing the RPR.
relevant
that Mr C may have acted in
AJ's
best interests in discharging his role as RPR. Article
5
(4) gives
AJ
an unqualified right of access to the court. There is no place in Article
5(4)
for a best interests decision about the exercise of that right since that would potentially prevent the involvement of the court. The decision to exercise a right to bring proceedings cannot be a best interests decision. As Baroness Hale of Richmond observed in Cheshire West (at paragraph 36), "the whole point about human rights is their universal character".
response,
Mr. Dooley on behalf of the local authority
reminds
me that "eligible" is defined in the Shorter Oxford English Dictionary as "fit or entitled to be chosen for a position". Paragraphs 142 to 146 of Schedule A1 to the Act provide for
regulations
including the objective criteria for selection of RPRs and the local authority therefore submits that the eligibility criteria are those laid down in
regulations
1 to 3 of the RPR
regulations
made under the statutory powers set out in those paragraphs. Mr Dooley submits that the provisions of paragraph 140 are not part of the eligibility criteria but, rather,
require
the person making the selection to make a judgment as to what the prospective RPR would do if appointed. These "expectations", (as Mr. Dooley describes them), that the RPR will maintain contact with,
represent
and support P in matters
relating
to or connected with Schedule A1, are set out in general terms and, submits Mr. Dooley,
reflect
the intention of Parliament that the RPR should be a friend or
relative
prepared to assist P, rather than a professional. Accordingly, Mr Dooley submits that Mr. C was "eligible" for selection and the donees were entitled to select him as RPR. The donees were the decision-maker as to selecting the person for appointment as the RPR. Given the BIA's capacity assessment, Mr. C took on the role of RPR in accordance with the
Regulations,
having
regard
to
AJ's
expressed wishes
reflected
in the structure of the
regulations,
and in particular in the first sentence of paragraph 140. It is submitted that when
read
in conjunction with the
Regulations
that sets out the selection process for the RPR and in the context of the legislator's stated intention, the supervisory body's decision to appoint Mr C as RPR following the best interests assessment was the decision it was
required
to make by the
relevant
statutory provision.
Discussion
Representative"
was completed by Ms G in terms that asserted that the selection of Mr. C as RPR was made by the donees of the LPA, but the evidence plainly shows, however, that the selection of Mr. C to act as
AJ's
RPR was made by Ms G. There is nothing in the evidence to indicate whether or not she drew Mr and Mrs. C's attention to the fact that, under
regulation
6(1)(b), the donee under an LPA may select the RPR if the scope of the donee's authority permits them to select a family member, friend or carer of P, including the donee himself or herself. Under
regulation
8(2), the BIA may only make a selection in certain circumstances, namely where P has the capacity to make a selection under
regulation
5(1)
but does not wish to do so, or where P's donee or deputy does not wish to make a selection under
regulation
6(1) or (2), or where P lacks the capacity to make a selection and (i) does not have a donee or deputy, or (ii) has a donee or deputy but the donee's or deputy's scope of authority does not permit the selection of a
representative.
In this case, P lacked capacity to make a decision, and there is no evidence that Ms G asked Mr. C whether he wished to select the RPR, or that any consideration was given as to whether the scope of the donees' authority under the LPA executed by
AJ
permitted them to select the RPR.
reality
is, as indicated on the face of the form headed "Selection of a
Representative",
that the donees under the LPA (i.e. Mr. and Mrs. C) made the selection, Ms G when complying with
regulation
7 ought to have
refused
to confirm that Mr. C was eligible. I accept the Official Solicitor's submissions as to the meaning of "eligible" and "eligibility" in the
regulations.
In my judgment, they encompass the
requirements
not only of
regulation
3 but also of paragraph 140 of Schedule A1. I acknowledge that paragraphs 7.7 to 7.9 of the DOLS Code of Practice
refers
to the
regulation
3 factors as the eligibility criteria. But Paragraph 140, which is a statutory provision, is in mandatory terms. The selection must not be made unless it appears to the person making it that the prospective RPR would maintain contact with P and would
represent
and support P in matters
relating
to the Schedule. I am not persuaded by Mr. Dooley's characterisation of the provisions of paragraph 140 as setting out "expectations". In my judgment, they are part of the eligibility criteria.
required
by
regulation
3(1)(b), that the person under consideration "is able to keep in contact with P". The person making the selection must also be satisfied, as
required
by paragraph 140(a), that the person under consideration "would, if appointed, maintain contact with P". Of particular
relevance
for this case, it is not enough for the person making the selection to be satisfied, as
required
by
regulation
3(1)(c), that the person under consideration is "willing to be the
relevant
person's
representative".
The person making the selection must also be satisfied, as
required
by paragraph 140 (b) and (c), that the person under consideration "would, if appointed ….
represent
the
relevant
person in matters
relating
to or connected with this Schedule and … support the
relevant
person in matters
relating
to or connected with this Schedule". The phrase "matters
relating
to or connected with this Schedule" must to my mind include, inter alia, challenging any authorisation granted under the Schedule.
read
the DOLS Code of Practice, this interpretation is consistent with the provisions therein, and in particular paragraphs 7.13 to 7.16 and with the European case law, in particular Shtukatarov v Russia, supra.
reluctant
to
represent
or support
AJ
in challenging the authorisation because he and his wife had concluded that they could no longer safely look after her at home and he believed that it was in her best interests to live in
residential
care. As he frankly said in his statement as quoted above, his "
reasons
for not assisting the appellant to exercise her right to
review
by the court was because he was aware of the complete background to the case, the extensive medical professional involvement and the outcome of a multi-disciplinary best interests meeting; the conclusions of all being that
AJ
required
significant care despite her likely objection." I accept Mr. C's evidence that he immediately
recognised
that there was a potential conflict of interest as he had been a party to the decision
resulting
in
AJ's
placement in the home because he considered this to be in her best interests. I accept his evidence that he raised this at the outset and that in
response
Ms G indicted that she would immediately arrange for the appointment of an IMCA. In my judgment, however, the appointment of an IMCA cannot overcome the ineligibility of the RPR.
regulations
is that the appointment of a friend or
relative
as RPR is to be preferred. But this preference, which can legitimately be called an "expectation", must yield to the overarching
requirement
that the person selected is eligible in the sense already explained, namely satisfying the criteria in
regulation
3 and paragraph 140 of the Schedule.
deprived
of
liberty
is not only entitled but enabled to have the lawfulness of his detention
reviewed
speedily by a court, to ensure that a mentally incapacitated adult is afforded independent
representation,
enabling them to have their Convention complaints examined before a court or other independent body, and not to permit access to a court to be dependent on the exercise of discretion by a third party who supports the
deprivation
of
liberty.
As the President has made clear in of
Re
X and Others (
Deprivation
of
Liberty)
[2014], it is not always necessary for P to be joined as a party to any proceedings, but the state is under a clear duty to ensure that he or she is able to challenge a
deprivation
of
liberty
in a process that is judicial, accessible and independent of the detaining authority. To my mind, these obligations impose on the local authority as supervisory body a duty to scrutinise the prospective RPR selected under
regulations
5
to 8 before making the appointment. I do not accept Mr. Dooley's submission that it was not open to the local authority as supervisory body to
refuse
to appoint Mr. C as RPR. The fact that, under
regulation
11, a supervisory body may not (except where
regulation
9 applies) appoint a RPR unless the person is
recommended
by a BIA under
regulation
7 or 8 does not mean that it is obliged to appoint a person who is so
recommended.
Where a supervisory body has
reason
to believe that the person selected as RPR will not comply with the obligations under paragraph 140 of the Schedule, its duties under Article
5
compel it to
refer
the matter back to the BIA.
AJ's
best interests to move into
residential
care. At the best interests meeting on 25th June 2013, which took place a few days before Ms G selected Mr. C to act as RPR, Mr. and Mrs. C informed the meeting that they knew that
AJ
would not want to go into
residential
care but that they felt this was the best option. The local authority ought to have known that Mr. C, given his firm view that a
residential
placement would be in her best interests, would have difficulty
representing
and supporting
AJ
in matters
relating
to or connected with Schedule A1, specifically in connection with any
review
of or challenge to an authorisation granted under the Schedule.
AJ's
best interests to go into
residential
care was irrelevant to the obligation to ensure that she was able to exercise her Article
5(4)
rights. European and domestic case law make it clear that an applicant is not
required,
as a precondition of enjoying the protection of Article
5,
to show that on the facts of her case she stands any particular chance of success in obtaining his
release:
Waite v UK, supra, para
59.
As Ms Butler-Cole puts it, Article
5(4)
gives
AJ
an unqualified right of access to the court so there is no place in Article
5(4)
for a best interests decision about the exercise of that right since that would potentially prevent the involvement of the court when, in Baroness Hale's words, "the whole point about human rights is their universal character". Indeed, it could be argued that the greater the consensus amongst professionals and
relatives,
the more the supervisory body needs to be on its guard to ensure that P's Article
5(4)
rights are
respected.
regulation
13. Under
regulation
13(h), "a person ceases to be a
representative
if … the supervisory body terminates the appointment because it is satisfied that the
representative
is no longer eligible or was not eligible at the time of appointment to be a
representative".
The guidance in the DOLS Code of Practice suggests that the obligation to monitor the performance of the RPR falls on the managing authority of the
residential
home. This does not, however, obviate the need for the supervisory body to satisfy itself that the RPR is eligible to be the RPR prior to appointment, and once appointed
remains
eligible throughout the term of the appointment.
realised
(1) that
AJ
was extremely unhappy in
residential
care and wished to challenge the authorisations and (2) that Mr. C was not taking any or any sufficient steps to
represent
or support her in pursuing that challenge. The local authority should therefore have taken steps to
replace
Mr C as RPR when it became apparent that he was not intending to issue proceedings promptly and that there was not going to be a speedy
review
of
AJ's
detention by a court, since s.21A proceedings must be brought very promptly to ensure compliance with Article
5(4).
represent
and support
AJ
in a key matter
relating
or connected to Schedule A1, namely a challenge to the authorisation granted under the Schedule
ISSUES CONCERNING THE IMCA
AJ
in exercising her rights. He further submits that, having rightly or wrongly appointed an IMCA, it
remained
under an obligation to monitor how the IMCA was acting in furtherance of those rights, and should have ensured that funds were available to enable the IMCA to obtain legal advice and act as litigation friend
AJ
before November 2013. The fact that he had failed to do so was not the
responsibility
of the local authority.
regulations
governing IMCAs. In particular, the following questions arise. (1) In what circumstances does the duty to appoint an IMCA under section 39D arise? (2) Did that duty arise in this case? (3) Did the appointment of the IMCA absolve the local authority from further
responsibility
to ensure that
AJ's
rights under Article
5(4)
were
respected?
In what circumstances does the duty to appoint an IMCA under section 39D arise?
"(1) Theresponsible
authority must make arrangements as it considers
reasonable
to enable persons ("independent mental capacity advocates") to be available to
represent
and support persons to whom acts or decisions proposed under section 37, 38 and 39
relate
or persons who fall within sections 39A, 39C or 39D.
(2) The appropriate authority may makeregulations
as to the appointment of independent mental capacity advocates. "
Section 36(1) enables the passing ofregulations
as to the functions of IMCAs. Section 36(2) stipulates what such
regulations
may cover, including
requiring
an advocates to take such steps as may be prescribed for the purpose of providing support to P so that he may participate as fully as possible in any
relevant
decision. The
regulations
passed under section 35(2) and section 36(1) are the Mental Capacity Act 2005 (Independent Mental Capacity Advocates General)
Regulations
2006.
receive
serious medical treatment (section 37), or accommodated in an NHS or care home (section 38), or by a local authority in
residential
accommodation (section 39), and where in any of those cases there was no one else, other than someone caring or treating P in a professional capacity, whom it would be appropriate to consult in determining what would be in P's best interests.
requiring
the appointment of an IMCA where P becomes "subject to schedule A1" (as defined in section 39B) and the managing authority is satisfied that there is no other person (other than someone caring or treating that person professionally or for
remuneration)
whom it would be appropriate to consult in determining what would be in P's best interests. Section 39A(
5)
provides that the section is subject to paragraph 161 of schedule A1, which provides that the duties and powers of an IMCA appointed under this section shall not apply when a RPR is appointed (save for certain specific powers to challenge the standard authorisation under section 21A). The second circumstance is set out in section 39C(3) which
requires
the appointment of an IMCA when an authorisation under schedule A1 is in force, the appointment of a RPR comes to an end and the managing authority is satisfied that the there is no other person (other than someone caring or treating that person professionally or for
remuneration)
who it would be appropriate to consult in determining what would be in P's best interests. Section 39C(
5)
provides that an appointment of an IMCA under this section ends when a new RPR is appointed. Thus the scheme of both section 39A and 39C is to provide for the temporary appointment of an IMCA pending the appointment of a RPR.
representative":
"(1) This section applies if—
(a) an authorisation under Schedule A1 is in force inrelation
to a person ("P"),
(b) P has arepresentative
("R") appointed under Part 10 of Schedule A1, and
(c) R is not being paid underregulations
under Part 10 of Schedule A1 for acting as P's
representative.
![]()
(2) The supervisory body must instruct an independent mental capacity advocate torepresent
P in any of the following cases.
(3) The first case is where P makes arequest
to the supervisory body to instruct an advocate.
(4) The second case is where R makes arequest
to the supervisory body to instruct an advocate.
(5)
The third case is where the supervisory body has
reason
to believe one or more of the following—
(a) that, without the help of an advocate, P and R would be unable to exercise one or both of therelevant
rights;
(b) that P and R have each failed to exercise arelevant
right when it would have been
reasonable
to exercise it;
(c) that P and R are each unlikely to exercise arelevant
right when it would be
reasonable
to exercise it.
(6) The duty in subsection (2) is subject to section 39E.
(7) If an advocate is appointed under this section, the advocate is, in particular, to take such steps as are practicable to help P and R to understand the following matters—
(a) the effect of the authorization;
(b) the purpose of the authorization;
(c) the duration of the authorization;
(d) any conditions to which the authorization is subject;
(e) thereasons
why each assessor who carried out an assessment in connection with the
request
for the authorization, or in connection with a
review
of the authorization, decided that P met the qualifying
requirement
in question;
(f) therelevant
rights;
(g) how to exercise therelevant
rights.
(8) The advocate is, in particular, to take such steps as are practicable to help P or R—
(a) to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right, or
(b) to exercise the right ofreview,
if it appears to the advocate that P or R wishes to exercise that right.
(9) If the advocate helps P or R to exercise the right ofreview—
![]()
(a) the advocate may make submissions to the supervisory body on the question of whether a qualifyingrequirement
is
reviewable;
![]()
(b) the advocate may give information, or make submissions, to any assessor carrying out areview
assessment.
(10) In this section—
'relevant
rights' means—
(a) the right to apply to court, and
(b) the right ofreview;
![]()
'right to apply to court' means the right to make an application to the court to exercise its jurisdiction under section 21A;
'right ofreview'
means the right under Part 8 of Schedule A1 to
request
a
review."
relevant
to the current case as it concerns circumstances where P
requests
the appointment of a second IMCA under section 39D. The following section, section 40, is
relevant.
Headed "Exceptions", it sets out certain circumstances in which the duties to appoint an IMCA under the previous sections do not apply. Section 40 was included in the original 2005 Act but amended by the 2007 Act. For
reasons
that will become clear below, I set out the original provisions as well as those under the amended and current version. As originally drafted, it
read:
"Sections 37(3), 38(3) and (4) and 39(4) and (5)
do not apply if there is
(a) a person nominated by P (in whatever manner) as a person to be consulted in matters affecting his interests;
(b) a donee of a lasting power of attorney created by P;
(c) a deputy appointed by the court for P, or
(d) a donee of an enduring power of attorney (within the meaning of Schedule 4) created by P."
As drafted under the amendment, the section nowreads:
"(1) The duty imposed by section 37(3), 38(3) or 39(4) or 39A(3), 39C(3) or 39D(2) does not apply where there is -
(a) a person nominated by P (in whatever manner) as a person to be consulted on matters to which that dutyrelates,
(b) a donee of a lasting power of attorney created by P who is authorized to make decisions inrelation
to those matters, or
(c) a deputy appointed by the court for P with power to make decisions inrelation
to those matters
(2) A person appointed under Part 10 of Schedule A1 to be P'srepresentative
is not, by virtue of that appointment, a person nominated by P as a person to be consulted in matters to which a duty mentioned in subsection (1)
relates."
It will be seen that the effect of the amendment was, first, to insert the new statutory duties under section 39A to D within the exceptions set out in section 40, but, secondly, to narrow the scope of those exceptions.
relates"
in section 40(1)(a) and the linked phrase "those matters" in section 40 (1) (b) and (c)? As pointed out above, the trigger for the appointment of an IMCA in sections 37, 38, 39, 39A and 39C is the absence of any other person who it is appropriate to consult in determining what would be in P's best interests. In contrast, the duty to instruct an IMCA under section 39D arises in different circumstances as set out above. I therefore asked the advocates for further written submissions as to the meaning of these phrases.
regard
to the need to interpret section 40 compatibly with the ECHR and, in particular, Article
5(4).
She submitted that section 39D IMCAs are not solely concerned with the exercise of "
relevant
rights" (as defined in section 39D(10)), although all section 39D IMCAs have an express duty to support P and the RPR to exercise these
relevant
rights. She submitted that the "matters" to which the duty to appoint an IMCA under section 39D(2)
relates
are the determination of P's best interests, as for the other IMCAs listed in section 40. She submitted that section 39D IMCAs "are still IMCAs and do have general duties to
represent
and support P, in addition to the particular duties concerning the exercise of
relevant
rights". However, Ms Butler-Cole stressed that the decision whether to exercise the
relevant
right on P's behalf is not a best interests decision, since it would not be consistent with the European jurisprudence for access to the court under Article
5(4)
to be dependent on a substituted best interests decision.
5(4)
safeguards
by supporting P and an RPR to access the right of
review
and challenge, specifically by helping them understand the matters
referred
to in section 39D(7)(a) to (h) and under section 39D(8) helping them to exercise those rights. He
reminded
the court that the intention of Parliament was to provide the necessary
safeguards
for P without usurping the role of family members or carers.
represent
and support P. Although they agree that the IMCA was under such a duty, they do not agree as to the provenance of that duty.
regulations
passed under s.35(2) and s.36(1) of the MCA are the Mental Capacity Act 2005 (Independent Mental Capacity Advocates General)
Regulations
2006. The functions of those IMCAs within the scope of the
regulations
are set out in
regulation
6 and include, in
regulation
6(3), a provision that "the IMCA must determine in all the circumstances how best to
represent
and support P." These
regulations
were made prior to the amendments to the Act made in 2007 which established the DOLS
regime
and introduced the new sections 39A to E. On behalf of the local authority, Mr. Dooley submitted that the general functions under those
regulations
apply not only to IMCAs appointed under the original provisions in sections 37 to 39 but also those appointed under the amended provisions set out in sections 38A to D. Ms Butler-Cole, on the other hand, submitted that the 2006
regulations
do not apply to section 39A, C or D IMCAs. She pointed out that the
regulations
are couched in terms indicating that they only apply to IMCAs appointed under the original provisions and were not amended when sections 39A to D were introduced. Thus
regulation
2(2) provides:
"In theseregulations,
![]()
references
to instructions given to a person to act as an IMCA are to instructions given under sections 37 to 39 of the Act or under
regulations
made by virtue of section 41 of the Act."
Furthermore,regulation
6, which sets out the functions of an IMCA, including the duty to determine in all the circumstances how best to
represent
and support P, is limited by
regulation
6(1) and (2) to cases where an IMCA has been instructed by a person who is
required
or enabled to instruct an IMCA under sections 37 to 39, or by
regulations
made under section 41. (Section 41 enables the making of
regulations
to expand the role of IMCAs.
Regulations
have been made pursuant to this power but are not
relevant
to the present case.)
regulations.
Instead, she argued that section 39D IMCAs "are IMCAs, whose general function is to
represent
and support P as set out in the definition of an IMCA in section 35(1)".
regulations.
The terms of the
regulations
make it clear that they do not apply to IMCAs appointed under section 39A to D. In particular, the provisions as to the functions to be carried out by IMCAs as set out in the
regulations
do not extend to IMCAs appointed under sections 39A to D. On the other hand, I do not accept Ms Butler-Cole's submission that section 35(1) imposes any general duty upon IMCAs which extends to all IMCAs including those appointed under sections 39A to D. Section 35(1) is simply a provision which
requires
authorities to make arrangements for the appointment of IMCAs. I do not
read
the terms of section 35(1) as amounting to a definition of the duties, powers, or functions of IMCAs.
relating
to the
deprivation
of
liberty
provisions under the Schedule. An IMCA appointed under section 39D does not have a broader, general role of
representing
or supporting P, and is not under a general duty to assist in determining what is in P's best interests but, rather, to perform the specific functions set out in section 39D(7), (8) and (9).
reached
that conclusion, I turn back to section 40. I can find no
reference
to the interpretation of the amended section 40 in the voluminous guidance set out in either the MCA Code of Practice or the DOLS Code of Practice. The MCA Code, which gives considerable guidance on the scope and interpretation of the original provisions concerning IMCAs in sections 37 to 39, has not been amended to give any guidance as to the interpretation of sections 39A to E and, so far as I can see, the DOLS Code does not address the issues under consideration here. The only steer, as helpfully pointed out by Mr. Dooley, is in the Explanatory Notes to the Mental Health Act 2007 which provides (in paragraphs 192 and 193):
"192. Under the MCA an independent mental capacity advocate (IMCA) must be appointed in specified situations to support andrepresent
particularly vulnerable people who have no family or friends or others whom it would be appropriate to consult. Sections 40 of the MCA provides some limited exceptions to the
requirement
to appoint an IMCA in these circumstances.
193. Section 49 [of the Mental Health Act 2007] substitutes a new version of section 40, to limit the exceptions to the duty to instruct an IMCA. The amendment ensures that there will still be a duty to instruct an IMCA (for health and social care issues) for someone who lacks capacity even if they have someone torepresent
them on different issues, for example financial issues. There is no such duty if they already have someone to
represent
them on the same issue."
relation
to those matters. By narrowing the scope of the exceptions to the duty to instruct an IMCA, the amended version of section 40
reinforced
the protection given to incapacitated persons, inter alia in
respect
of their Article
5(4)
rights.
relates
are not "determining what would be in P's best interests". As already pointed out, this phrase is included in section 37, 38, 39, 39A and 39C but notably absent from section 39D. I do not
regard
this as an oversight by the Parliamentary draftsmen. I conclude that the matters to which the appointment of an IMCA under section 39D
relates
are those set out in section 39D(7) and (8), that is to say helping P and the RPR to understand the matters listed in subsection (7) (namely specific aspects of the Schedule A1 authorisation process, the
reasons
why a BIA had decided that P has met the qualifying
requirements,
the
relevant
rights to apply to the court and for
review
and how to exercise them) and, under subsection (8), if it appears to the advocate that P or the RPR wishes to exercise either of the
relevant
rights, taking such steps as are practicable to help him or her do so.
relation
to the matters in section 39D(7) and (8).
(2) Did the duty to appoint an IMCA arise here?
5)
arose, unless the donee of either of the LPAs executed by
AJ
was authorized by the LPA to make decisions in
relation
to the matters to which that duty
related.
respect
of both health and welfare and property and financial affairs, naming Mr. and Mrs. C as donees. The LPAs were
registered
on 29th May 2013. Under the original version of section 40, this would have been sufficient to exclude any statutory duty to appoint an IMCA. Under the amended section 40, the duty is only excluded if the donee of the LPA is authorised to make decisions in
relation
to the matters in section 39D(7) and (8).
restrictions.
Neither LPA make any
reference
to the
relevant
rights in section 39D, or to decisions concerning those rights. In my judgment, the power given under a standard form LPA giving donees the power to make decisions concerning health and welfare or property and financial affairs do not include the power to make decisions
relating
to the matters to which the duty under section 39D(2)
relates.
The exercise of those rights concerning the
deprivation
of
liberty
is not a decision
relating
to welfare. I accept Ms Butler-Cole's submission that the statutory provisions and individual instruments must be interpreted in a way which is compatible with ECHR. If Parliament had intended that the scope of a health and welfare LPA should extend to the decisions concerning the exercise of
relevant
rights within the meaning of section 39D(10), I would have expected this to be expressly stated in the statute. By way of analogy, section 11(7)(c) provides that "where a lasting power of attorney authorises the donee…to make decisions about P's personal welfare, the authority…extends to giving or
refusing
consent to the carrying out or continuation of a treatment by a person providing healthcare for P." Had Parliament intended decisions concerning the exercise of
relevant
rights under section 39D to be within the scope of the powers of donees under a LPA, the statute would have been amended to contain a similar provision.
relating
to matters to which the duty to appoint an IMCA under section 39D(2)
related.
It follows that the local authority was under a duty to appoint an IMCA if any of the three cases in section 39D(3),(4) or (
5)
arose.
referral
form, under the heading "Part B – type of IMCA
referral",
Ms G put a cross in the box numbered B8 next to the words on the form
reading
"39D – the supervisory body believes that the person
deprived
of their
liberty
and their unpaid
representative
relevant
person's
representative
will both benefit from the support of an advocate". For
reasons
that are not clear to me, the terminology used on the form does not
reflect
the language of the statutory provisions in section 39D(
5).
The supervisory body is not under an obligation to appoint an IMCA simply because it believes that P and/or the RPR will "benefit from the support of an advocate". The obligation only arises where the supervisory body has
reason
to believe (a) that without the help of an advocate, P and R would be unable to exercise one or both of the
relevant
rights or (b) that P and R have each failed to exercise a
relevant
right when it would have been
reasonable
to exercise it, or (c) that P and R are each unlikely to exercise a
relevant
right when it would be
reasonable
to exercise it. The
reasons
why the standard form is drafted as it is were not canvassed in the hearing, but might usefully be considered by the Court of Protection Rules Committee. Be that as it may, the evidence showed that
AJ
and Mr. C were each unlikely to exercise a
relevant
right when it would be
reasonable
to exercise it (
AJ
because she lacked capacity, Mr. C because he believed that it was in
AJ's
best interests to be in
residential
care.) Accordingly, the local authority was under a duty to appoint an IMCA under section 39D(
5)(c).
requested"
that an IMCA be appointed. In those circumstances, the local authority was under a duty to appoint an IMCA under section 39D(4).
(3) Did the appointment of the IMCA absolve the local authority from further
responsibility
to ensure that
AJ
rights under Article
5(4)
were
respected?
residential
home where an authorisation is in force should trigger an appeal to the Court and in this case it was clear at all times that
AJ
objected to her placement in X House and subsequently in Y House.
referred
to him, he was
responsible
for about 35 cases and that number has now risen to around 40. In fairness to him, as I have already mentioned, he was off sick for a time in the Autumn 2013. Mr. R said that he was aware that part of his role as an IMCA is to discuss with P their rights, including the right to appeal against a standard authorisation. He said, however, that he and his colleagues had been "consistently told" by their managers that they could not act as litigation friends. Consequently there was, he said, no clarity as to how to take matters forward and IMCAs are often in a quandary about what to do in such circumstances. It was the local authority's case, however, that at all material times funds were available to assist in the appointment of a litigation friend. In cross-examination, Mr. R conceded that he had not made inquiries of the local authority to establish whether additional funds would be made available in this case to assist in the appointment of a litigation friend.
AJ's
behalf. If his personal circumstances made that difficult, he should have arranged for the case to be allocated to another IMCA.
responsibility
to ensure that
AJ
rights under Article
5(4)
were
respected.
Ms Butler-Cole submitted that it was ultimately the local authority's
responsibility
to ensure that
AJ's
rights under Article
5(4)
were not breached. Accordingly, the local authority should have either
required
the RPR or the IMCA to issue proceedings under section 21A or, failing that, issued proceedings itself. Ms Butler-Cole contended that it is not uncommon for local authorities to issue section 21A proceedings themselves and that there is no bar on a detaining authority issuing such proceedings, citing in support the decision in Westminster City Council v Sykes [2014] EWHCB 9 (COP). She submitted that, whilst it is clear that the scheme of the Act is that P or the RPR should issue the proceedings, there is nothing in the Act that prevents the local authority issuing proceedings itself and there is no principled or practical
reason
why the local authority, knowing that there was a dispute as to a qualifying
requirement,
might not ask the court to determine that dispute under section 21A.
AJ.
Without funding authorisation, the IMCA could not approach the solicitors on
AJ's
behalf. With no other potential litigation friend,
AJ
was effectively prevented from accessing legal advice. Ms Butler-Cole drew attention to the Department of Health's 6th IMCA
report
which identifies, as a point of good practice, the importance of local authorities setting aside a
resource
pot for the role of litigation friend, which can be drawn from when necessary, and further of local authorities indemnifying the IMCA organization for
reasonable
costs incurred in the course of the court proceedings.
reasons
I have set out above, I do not accept. Mr. Dooley further submitted, however, that, having appointed an IMCA, the local authority was under no further duty to take steps to ensure that
AJ's
relevant
rights were exercised. He submitted that the fact that the IMCA had not facilitated any application to the court before November 2013 was not the
responsibility
of the supervisory body who imposed no
restrictions
on the work of IMCAs and had funds available in appropriate cases to meet additional costs incurred, for example in acting as a litigation friend. Furthermore, he submitted that there is no duty placed upon the supervisory body to challenge a standard authorization in the statutory scheme. He conceded that this may have been a step taken in other cases, but in this case, having appointed a RPR and an IMCA to support
AJ,
the local authority was under no such obligation. On behalf of the local authority, he expressed
regret
about the delays in bringing the matter before the court but submitted that those delays were the
result
of a combination of mischances rather than any failure on the part of the local authority to uphold
AJ's
Article
5
rights.
resources
available to assist the IMCA to act as litigation friend. As set out above, the appointment of an IMCA under section 39D was entirely appropriate and, although Mr. C was uncertain about how to take matters forward, I accept the local authority's case that
resources
were in fact available, for example to assist an IMCA acting as litigation friend. In most cases, that would in all probability have been sufficient. In this case, however, the local authority knew that Mr. C was unwilling or at least very
reluctant
to
represent
or support
AJ
in challenging the authorisation because he and his wife had concluded that they could no longer safely look after her at home and he believed that it was in her best interests to live in
residential
care. In those circumstances, I find that the appointment of Mr. R and the provision of
resources
to assist him in his role as IMCA did not absolve the local authority from its continuing obligation to ensure that
AJ's
rights under Article
5(4)
were
respected.
The local authority knew at all times that
AJ
did not wish to be in X House or Y House. In those circumstances, I consider that the local authority, in addition to monitoring the actions of Mr. C as RPR and taking steps to
replace
him if appropriate, should have made enquiries as to why the IMCA was not taking steps to ensure that the right to apply to the court was being exercised.
resort,
the local authority should have considered bringing proceedings before the court itself. Plainly this is a last
resort,
because of the comprehensive and complex provisions for the selection and appointment of RPRs and the appointment of IMCAs are followed, and if RPRs and IMCAs appointed under these provisions carry out their
responsibilities
as they should, the rights of an incapacitated person to challenge a
deprivation
of
liberty
normally will be protected. But the local authority
remained
under a continuing and positive obligation to ensure that
AJ's
Article
5(4)
rights were
respected.
Thus, if it was not satisfied that the IMCA was taking the necessary steps to apply to the court, and if in all the circumstances it considered such a course to be appropriate, it should have brought court proceedings itself. In this case, however, it is likely that an inquiry of Mr. R by the local authority into the steps he was proposing to take would have clarified the position and led him to initiate proceedings at an earlier stage.
AJ's
challenge to the
deprivation
of her
liberty
was brought before the court were inadequate.
CONCLUSION
reminded
us in
Re
X and Others (
Deprivation
of
Liberty),
supra, it is a fundamental principle,
recognised
by the European Court in Winterwerp, that P should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of
representation.
In the absence of these
safeguards,
he will not have been afforded the fundamental guarantees of procedure applied in matters of
deprivation
of
liberty.
AJ
expressed concern about the way in which she was admitted into care. One of them, ND, as stated above, spoke to Ms B in July 2013 and protested that
AJ
had been "dumped" in Y House, but was told that the correct process had been followed and as he was not
AJ's
next of kin the case could not be discussed further. ND filed a statement in these proceedings setting out his concerns, and describing various meetings with
AJ
before and after her admission. He paints a concerning picture of
AJ's
distress at her situation. He added:
"asAJ's
friends of thirty years or more and people who have been involved in her care, we felt helpless and disappointed that we were now letting her down as there was nothing we could do to help her. She had no voice of her own and no one else to fight her corner. We had been told that because we are not
related
to her, there was nothing we could do."
AJ's
rights under Article
5
were
respected.
I accept the Official Solicitor's submission that ultimate
responsibility
lay with the local authority.
(1) That theRespondent
local authority has unlawfully
deprived
![]()
AJ
of her
liberty
and thereby infringed her rights under Article
5(1)
of ECHR by placing her between 13th and 20th June 2013 in a
residential
home in circumstances which amounted to a
deprivation
of
liberty
without first either (a) granting any authorisation for such
deprivation,
pursuant to Schedule A1 of the Mental Capacity Act 2005, or (b) obtaining an order of this Court authorising such
deprivation;
(2) That the local authority, knowing at all material times thatAJ
did not wish to
reside
at Y House, infringed
AJ's
rights under Article
5(4)
of ECHR between
5th
June and 18th November 2013 by
(a) wrongly appointing Mr C asAJ's
![]()
relevant
person's
representative
when it knew or ought to have known that he would not
represent
or support
AJ
in challenging the standard authorisations granting by the local authority under Schedule A1;
(b) failing to terminate Mr C's appointment asrelevant
person's
representative
when he failed to take any or adequate steps on
AJ's
behalf to challenge the said authorisation; and
(c) failing to take adequate steps to ensure thatAJ's
challenge to the
deprivation
of her
liberty
was brought before the Court expeditiously.
recognised
as taking its
responsibilities
to elderly and vulnerable people extremely seriously, has taken on board the lessons of this case. I accept his assurance. There are, however, a number of wider lessons for practitioners arising from this litigation.
deprivation
of
liberty
begins. It is only in exceptional cases, where the need for the
deprivation
of
liberty
is so urgent that it is in the best interests of the person for it to begin while the application is being considered, that a standard authorisation need not be sought before the
deprivation
begins.
residential
care ostensibly for
respite
when the underlying plan is for a permanent placement without proper consideration as to their Article
5
rights.
regulation
3 of the Mental Capacity (
Deprivation
of
Liberty:
Appointment of
Relevant
Person's
Representative)
Regulations
2008 but also the
requirements
of paragraph 140 of Schedule A1 of the MCA. This
requires
that the BIA not only checks that the facts set out in
regulation
3 are satisfied but also carries out an analysis and
reaches
a judgment as to whether the prospective
representative
would, if appointed, (a) maintain contact with the
relevant
person; (b)
represent
the
relevant
person in matters
relating
to or connected with the Schedule and (c) support the
relevant
person in matters
relating
to or connected with the Schedule.
regulation
3 and in paragraph 140 of Schedule A1. If the local authority concludes that the person selected for appointment does not meet the criteria, it should
refer
the matter back to the BIA.
relative
or friend who believes that it is in P's best interests to move into
residential
care, and has been actively involved in arranging such a move, into a placement that involves a
deprivation
of
liberty,
to fulfil the functions of RPR, which involve making a challenge to any authorisation of that
deprivation.
BIAs and local authorities should therefore scrutinise very carefully the selection and appointment of RPRs in circumstances which are likely to give rise to this potential conflict of interest.
5
rights.
responsibility
for ensuring that P's Article
5
rights are
respected.
The local authority must monitor whether the RPR is
representing
and supporting P in accordance with the duty under paragraph 140 and, if not, consider terminating his appointment on the grounds that he is no longer eligible. The local authority must make sufficient
resources
available to assist an IMCA and keep in touch with the IMCA to ensure that all
reasonable
steps are being taken to pursue P's Article
5
rights.
resort
since in most cases P's Article
5 rights should be protected by the combined efforts of a properly selected and appointed RPR and an IMCA carrying out their duties with appropriate expedition.