RD and others 
Keywords: DOLS, s.21 challenges, RPRs, IMCAs
This was a group of 5 test cases, all of which had been brought as s.21A challenges to DOLS authorisations and involving a range of factual circumstances, brought together before Baker J in order to afford the COP an opportunity to resolve uncertainty amongst professionals about how RPRs and s.39A IMCAs should decide whether to bring s.21A challenges. The critical issue was helpfully set out (para. 41) as:
“When, if at all, does the requirement under Article 5(4) to assist P to exercise his or her right of appeal to the Court of Protection under s.21A of the MCA arise in cases other than those in which P expresses a clear and consistent objection to the arrangements for his/her care and treatment?”
The essential source of dispute between the representatives of the various incapacitated adults in these cases on the one hand and the supervisory bodies on the other was whether agitated and distressed behaviour on the part of a person with (say) dementia should be taken as indicating a wish to object to their detention.
In analysing the issues, Baker J quoted the European Court in Waite v UK (para. emphasising:
“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 to enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his release.”
Baker J also made reference to his own judgement in re AJ which clarified that Article 5(4) provides an unqualified right and, therefore, that there is no place for a best interests’ decision in the exercise of P’s right to challenge the lawfulness of their detention.
The judgement examines in some detail the provisions of the MCA regarding the duties of both RPRs and the much narrower duties of s.39 IMCAs, noting that both roles specifically involve ensuring independent support to P to ensure P’s ability to exercise rights under the act to challenge their detention. RPRs have a wide range of duties to support P and some of these require the RPR to come to make decisions in P’s best interests, supporting P to exercise their s.21 right to appeal is the exercise of an unqualified right and not a best interests’ decision on P’s behalf. Whilst being very clear that the RPR’s duty in relation to s.21 is to identify whether P wishes to appeal and not whether the RPR themselves thinks it is in P’s best interests to appeal, Baker J was also at pains to point out the additional and separate (to those enjoyed by P) powers of an RPR under s. 50(1)(a) to apply to COP to determine any question relating to the DOLS authorisation.
Noting that s.21 itself does not provide any guidance regarding the circumstances under which such applications should be brought, Baker J turned to Chapter 10 of the DOLS Code of Practice which, while it seeks to encourage the maximum use of informal dispute resolution via negotiation and/or the review procedure, also emphasises the importance of unfettered access to the COP by P (or on P’s behalf) to resolve any issue relating to the authorisation of their detention under DOLS.
Various possible formulations of a potential mechanism for determining whether an RPR or s.39D IMCA should bring a S.21A challenge were proposed by the parties. The Official Solicitor (on behalf of RD) proposed that such a challenge should be brought in all cases where it could not be determined that P did not wish to bring such a challenge. Ms. Butler-Cole (representing the other 4 applicants) proposed instead, drawing on the language of s.39D, that a challenge should be brought where it appeared to the representative (RPR or IMCA) that P wished or would wish to bring such a challenge. The local authorities, however, proposed that the language of s.39D should be interpreted in a limited and strictly literal sense, given the resource implications for local authorities of large numbers of s.21A challenges, and that, having been provided with the relevant information about their rights, a positive expression by P of a wish to challenge the detention was required.
Baker J (para 86) set out the following general guidance for RPRs and IMCAs (and for local authorities in considering whether a s.21A challenge is being properly brought):
(1) The RPR must consider whether P wishes, or would wish, to apply to the Court of Protection. This involves the following steps:
(a) Consider whether P has capacity to ask to issue proceedings. This simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements. It is a lower threshold than the capacity to conduct proceedings.
(b) If P does not have such capacity, consider whether P is objecting to the arrangements for his/her care, either verbally or by behaviour, or both, in a way that indicates that he would wish to apply to the Court of Protection if he had the capacity to ask.
(2) In considering P’s stated preferences, regard should be had to:
(a) any statements made by P about his/her wishes and feelings in relation to issuing proceedings,
(b) any statements made by P about his/her residence in care,
(c) P’s expressions of his/her emotional state,
(d) the frequency with which he/she objects to the placement or asks to leave,
(e) the consistency of his/her express wishes or emotional state; and
(f) the potential alternative reasons for his/her express wishes for emotional state.
(3) In considering whether P’s behaviour constitutes an objection, regard should be had to:
(a) the possible reasons for P’s behaviour,
(b) whether P is being medicated for depression or being sedated,
(c) whether P actively tries to leave the care home,
(d) whether P takes preparatory steps to leave, e.g. packing bags,
(e) P’s demeanour and relationship with staff,
(f) any records of challenging behaviour and the triggers for such behaviour.
(g) whether P’s behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements.
(4) In carrying out this assessment, it should be recognised that there could be reason to think that P would wish to make an application even if P says that he/she does not wish to do so or, conversely, reason to think that P would not wish to make an application even though he/she says that she does wish to, since his/her understanding of the purpose of an application may be very poor.
(5) When P does not express a wish to start proceedings, the RPR, in carrying out his duty to represent and support P in matters relating to or connected with the Schedule, may apply to the Court of Protection to determine any of the four questions identified in s.21A(2) i.e. on the grounds that P does not meet one or more of the qualifying requirements for an authorisation under Schedule A1; or that the period of the standard authorisation or the conditions subject to which the standard authorisation is given are contrary to P’s best interests; or that the purpose of the standard authorisation could be as effectively achieved in a way that is less restrictive of P’s rights and freedom of action.
(6) Consideration of P’s circumstances must be holistic and usually based on more than one meeting with P, together with discussions with care staff familiar with P and his/her family and friends. It is likely to be appropriate to visit P on more than one occasion in order to form a view about whether proceedings should be started.
(7) By way of an alternative to proceedings, it may be appropriate to instigate a Part 8 review, or to seek to work collaboratively with the family and the commissioning authority to see whether alternate arrangements can be put in place. Such measures should not, however, prevent an application to the court being made where it appears that P would wish to exercise a right of appeal.
(8) The role of the IMCA appointed under s.39D is to take such steps as are practicable to help P and the RPR understand matters relating to the authorisation set out in s.39D(7)(a) to (e), and the rights to apply the Court of Protection and for a Part 8 review, and how to exercise those rights. Where it appears to the IMCA that P or the RPR wishes to exercise the right, the IMCA must take all practical steps to assist them to do so. In considering P’s apparent wishes, the IMCA should follow the guidance set out above so far as relevant.
Full transcript at: http://www.bailii.org/ew/cases/EWCOP/2016/49.html