Section 21As, interim declaration and the importance of speedy determinations

Practitioners will need to note the implications of the recent and important judgment of Hayden J in DP (by his ALR Keith Clarke) v London Borough of Hillingdon [2020] EWCOP 45 . You can read the judgment here.

DP was 72 and had an organic personality disorder and catatonic disorder, both of which resulted from an earlier stroke.  He was  deprived of his liberty in a care home under a standard authorisation (SA).   He challenged this under section 21A Mental cApacity Act 2005 (MCA). 

The judge had provided the parties with a directions order in which she made interim declarations under section 48 MCA to the effect that DP lacked capacity to conduct the proceedings and as to whether to be accommodated in the care home for the purpose of the relevant care and treatment.   The judge must have been aware that the question of capacity was contentious as she also directed the parties to identify an expert who could provide a report on DP’s capacity under section 49 MCA.

DP successfully appealed on the basis that the judge wrongly approached the question whether to make a declaration of incapacity under section 48.  

The judge had provided an analysis of the only evidence of capacity which was from a section 12 psychiatrist Dr Longe.  It was clear from that analysis that the judge had reservations about Dr Longe’s evidence.  She was concerned that Dr Longe did not explain the purpose of the assessment to DP.  Dr Longe’s conclusion that DP could not communicated his decision  “did not quite make sense as DP was able to speak and communicate”.   Moreover he did not address “the real question” which was whether DP could evaluate any available options as to his residence and care.  Nevertheless the judge made the declarations under section 48 as to DP’s capacity.  Moreover she did not address at all DP’s application that the SA should be terminated immediately.

On appeal Hayden J noted that in an application  under section 21A is (as set out by Charles J in Re UF ) the Court “ is assessing the relevant qualifying requirements itself and reaching its own view on the evidence presented to it. It is almost inevitable that when doing that the Court will have to pay close attention to what will, on the evidence before it, best promote the best interests of the relevant person in the immediate, medium and long term and so carry out its own best interests assessment.”  He noted that both parties agreed that that “the court should not treat Section 21A applications in the same way as a welfare application because Article 5( 4) ECHR requires the court to determine the former as, in effect, a matter of urgency.”

The judge rejected the submission that the court should never make interim orders of any kind in a section 21A case, preferring the alternative formulation that “an interim order, to gather further information, should only be made if there is a sufficiently clear evidential basis to do so.”  He stated  “I strongly prefer the alternative submission which, in my judgement, strikes the balance between protecting P’s autonomy and promoting his welfare.”

The judge went on to say that:

“It is the duty of the court to determine whether the mental capacity requirement is met. If, as here, the judge was uncertain, then the obligation on the court was to investigate it further and to do so “speedily”, to adopt the word used in Article 5(4). Of course, in Section 21A applications the court will always and of necessity have a capacity assessment before it. It was open to the Deputy District Judge, for example, to permit questions to be put to Dr Longe and/or, if necessary, to arrange for him to give evidence or revisit his assessment. I doubt that it was necessary to instruct a further expert on what is, when properly identified, an essentially uncomplicated issue i.e. does DP have capacity to decide to change care homes to be nearer to his friend Bill and, if not, whether it is in his best interests to do so.”

As to the quality of evidence necessary, the judge cited the ECtHR’s judgment in Sykora v The Czech Republic, 22 November 2012, para 103:

“any deprivation or limitation of legal capacity must be based on sufficiently reliable and conclusive evidence. An expert medical report should explain what kind of actions the applicant is unable to understand or control and what the consequences of his illness are for his social life, health, pecuniary interests, and so on. The degree of the applicant’s incapacity should be addressed in sufficient detail by the medical reports”.

Hayden J noted that 

“45.     Where a standard authorisation is in place, it remains in force until (i) its expiry date is reached; (ii) it is suspended, under sch. Al, part 6; (iii) the supervisory body terminates it; or (iv) the court terminates it, under s. 21A. For as long as the authorisation is in force, it provides the authority for the deprivation of P’s liberty. When s. 21A proceedings are brought, the court’s function is to ‘determine’ questions as to whether the qualifying requirements are met and to consider varying or terminating the authorisation in light of its determination of the questions (see para 31 above).

46.       As I have emphasised above, when the court determines any question relating to the authorisation, the extant authorisation remains in force, without the need for any positive decision by the court. The court does not become responsible for authorising P’s deprivation of liberty upon the issuing of as. 21A application. The court’s only function is to provide the review of the authorisation which is in force. In every case it is for the court to determine how it should resolve the issues raised in the application. Mr Parkhill submits that these are essentially case management decisions and, I agree. Mr Parkhill recognises and accepts Ms Butler-Cole’s point that the guiding principle is the need for speedy determination of the lawfulness of detention mandated by Article5(4). This is a realistic concession recognising a significant body of European jurisprudence: Van der Leer v. the Netherlands, Appl No. 12/1988/156/210, 21 February 1990; Oldham v the United Kingdom, Appl No. 36273/97, 26 September 2000; Van Glabeke v France, Appl No. 38287/02, 7 March 2006; MH v the United Kingdom (2013) ECHR 1008, 22 October 2013; Raudevs v Latvia, Appl No. 24086/03, 17 December 2013.”

There is no need for the court to make a declaration under section 48 as to P’s lack of capacity for the purpose of Schedule A1 MCA whilst the SA remains in force.

The judge then made the following (obiter) observations as to the use of section 48 which are summarised at para 62:

  • The words of the Statute in Section 48 require no gloss;
  • The question for the Court remains throughout: is there reason to believe P lacks capacity?;
  • That question stimulates an evidential enquiry in which the entire canvas of the available evidence requires to be scrutinised;
  • Section 48 is a permissive provision in the context of an emergency jurisdiction which can only result in an order being made where it is identifiably in P’s best interests;
  • The presumption of capacity applies with equal force when considering an interim order pursuant to Section 48 as in a declaration pursuant to Section 15;
  • The exercise required by Section 48 is different from that set out in Section 15. The former requires a focus on whether the evidence establishes reasonable grounds to believe that P may lack capacity, the latter requires an evaluation as to whether P, in fact, lacks capacity;
  • The court does not become responsible for authorising P’s Deprivation of Liberty upon issuing of a Section 21 A application, The court’s function is to review the authorisation which is in force;
  • The objective of Section 48 is neither restrictive, in the sense that it requires a high level of proof, nor facilitative, in the sense that it is to be regarded as a perfunctory gateway to a protective regime, and
  • There is a balancing exercise in which the Court is required to confront the tension between supporting autonomous adult decision making and to avoid imperilling the safety and well-being of those persons whom the Act and the judges are charged with protecting.

Comment

This important judgment helpfully emphasises the need for the court to ensure a “speedy” determination of an application under section 21A.   In section 21A cases the courts should not make an interim declaration as to capacity in relation to the decisions concerning residence and care.  There is however no suggestion that it may be inappropriate to make interim declarations under section 48 in relation to other matters such as capacity to conduct the proceedings, provided the court is satisfied as to the evidence, applying the guidance set out above.

Importantly this judgment does not prevent the court from extending a SA under section 48, which can be important for legal aid purposes.  In Re UF, which Hayden J expressly approved, Charles J reasoned that:

34.It seems to me that the combination of s. 21A (2)(b) and (3)(a) and (b), s. 47 and s. 48 and paragraph 61(2) of Schedule A1 of the MCA empowers the Court of Protection to vary an existing standard authorisation by extending (or shortening) it and that if and when it exercises that power it would normally be sensible for the court to give consideration to whether it should then exercise its powers under ss. (6) and (7) or give directions concerning its future exercise of those powers. 

35. In my view if the court so extends a standard authorisation it, unlike the supervisory body (see paragraph 51(2) of Schedule A1), is not limited to the period stated in the best interests assessment upon which it was based if that period is less than the one year referred to in paragraph 42(2)(b) of Schedule A1. This is because the Court is exercising its discretion and powers, and so is in effect carrying out its own (interim) best interests assessment.

Moreover it should  be remembered that the fact that a case begins as a challenge under section 21A does not prevent the court from exercising its jurisdiction under sections 15 and 16 MCA.  This was reiterated by the Court of Appeal in Director of Legal Aid Casework v Briggs.   Briggs is important too for the recognition of the breadth of issues that may arise in Section 21A cases.