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.

Progress report- remote working in the Civil and Family Courts

Practitioners may be interested to read the letter to District and Circuit judges, sitting in civil and family cases, from the Lord Chief Justice, Master of the Rolls and President of the Family Division.  You can read the letter here.

It is a helpful progress report on the experience of remote working, by both telephone and video-link.   It notes:

“Across all jurisdictions, around 40% of all hearings have continued, some in the traditional way, others using phone, video or the internet. It is easier to continue in this way with some types of court and tribunal cases than others. The overwhelming majority of those have not been long hearings involving difficult evidence or high emotion, and for obvious reasons.”

 

The letter does not refer to the experience of the Court of Protection, or to cases involving deprivation of liberty.

Fees Reduction

Practitioners are informed that from today 22 July 2019, the following fees will apply:

 

Application fee (currently £385) will reduce to £365.

Appeal fee (currently £320) reducing to £230.

Hearing fee (currently £500) reducing to £485.

You can read the order here.

“Finally, a happy ending to a tragic story”

In two excoriating judgments  (London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1) Lambeth CCG (2) [2018] EWCOP 14;  and London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1); and Lambeth CCG (2)[2018] EWCOP 20), Newton J has underlined the disastrous- and costly- consequences of “disorganised, muddled and unfocused decision-making”.  He was highly critical of the the failure of two statutory bodies concerned to make progress in repatriating MCS, a Colombian woman who suffered hypoxic brain injury as a result of a cardiac arrest in 2014. There was no dispute that MCS, as a result of her brain injury, lacked capacity to make decisions about her residence and care, nor was there any dispute that it was in MCS’ best interests to be repatriated to Colombia in accordance with what had been absolutely consistent wishes.

Although proceedings were commenced by MCS’ RPR in 2016 (as a result of the RPR’s frustration with the delay since 2014 to make the repatriation arrangements), it was not until January 2018 that the judge was able to sign off a plan for MCS’ return to her home, which went smoothly and  provided what the judge described as a “happy ending to a tragic story”.

Newton J used uncompromising language in describing the failings of the local authority: “shocking”, “astonishing”, efforts that were “facile.. ineffective” and documentation that was “depressingly scant…unedifying”.  The impact of all of this is graphically summarised at [9] in the first judgment:

“Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.”

Perhaps unsurprisingly, this was followed by an adverse costs order in the second judgment. Newton J commented at [2]:

“Proceedings brought in the Court of Protection almost never attract an enquiry into the issue of costs, essentially since they are inquisitional in nature, the general costs principles do not sit easily within the parameters of the Court’s considerations. However, as the President recognised in Re G [2014] EW COP 5, there will occasionally be cases but there must be good reason before the Court will contemplate departing from the general rule. For example an order for costs was made in Re SW [2017] EW COP 7 where the application was “scarcely coherent … totally without merit … misconceived and vexatious”. These proceedings would not necessarily be categorised in that way, but what if they were or should have been fundamentally unnecessary, that is to say they should never have been brought? Or what if the conduct of the proceedings been so poor, so incompetent that not only did they take much longer than they should (thus unnecessarily necessitating P remaining for so very much longer in difficult circumstances) and requiring many extra unnecessary hearings? In those circumstances is the Court not able to mark its disapproval by the consideration and award of costs.”

The judge did not accept that the statutory bodies had been (as they submitted) “assiduous” in trying to arrange MCS’ repatriation.  He did accept that the operation to return MCS to Colombia was novel for those concerned with making the arrangements.  Despite this he was highly critical of the failure to make “basic common-sense enquiries” with the Colombian Embassy and to apply sufficient professional focus.  The judge commented at [4] that

“It should not be thought that I overlook the care that was provided to P, nor, ultimately her successful repatriation, but what is impossible to ignore is the disorganised thinking, planning and management which resulted in her detention here for so very much longer than necessary.”

The judge ordered “without hesitation” that the local authority and CCG should fund the costs of the proceedings.  This is an important reminder that simply bringing a case before the court, and achieving the right outcome in the end, will not avoid the penalty of a costs order if there are failings of the magnitude that occurred in this case. The fact that the case involves an issue which may well be novel and operationally complex does not negate the obligation to bring sufficient professional focus to bear in order to draw the case to a timely conclusion.

 

 

 

LPS to go to Parliament

The Mental Capacity (Amendment) Bill has just been introduced to the House of Commons.

The press release explains that

“The reforms seek to:

  • introduce a simpler process that involves families more and gives swifter access to assessments
  • be less burdensome on people, carers, families and local authorities
  • allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process
  • consider restrictions of people’s liberties as part of their overall care package
  • get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment

The reforms will also save local authorities an estimated £200 million or more a year.”

The progress of the Bill will be watched by many.

Regional Applications Scheme Launched.

We have been asked to publicise an important change to the way in which health and welfare applications and section 21A applications are issued.

As the regionalisation project moves ahead, these applications will be issued from regional centres, starting with the South West (Bristol) Regional Hub, as from 30 April 2018.

The other regional centres will begin issuing their own applications from 25 June 2018.

This does not apply to serious medical treatment cases or to property and affairs cases.

Practitioners may have received a letter from HMCTS with essential information about how the new process will work, including how issue fees should be paid.  You can read the letter here.

HMCTS explain that they will try to attend user group meetings in the regional hubs before the pilot starts in that reason.

 

Accredited Legal Representatives Scheme Launched

We are very pleased to confirm that on 2 April 2018 HMCTS introduced the process of appointing accredited legal representatives (ALRs) of the court’s own motion, in appropriate cases.  This means that the “menu” of options for representing P, as set out in COPR r1.2 is now complete.

We hope that the court will take advantage of the cadre of ALRs who have gone through what appears to be the testing process of securing appointment to the Law Society’s Mental Capacity Accreditation Scheme.

We’re aware that some practitioners have expressed concern that, in circumstances where P has been referred by his or her RPR to a solicitor who has secured legal aid, the court may then appoint a different solicitor as ALR.  There are understandable anxieties about lack of continuity for P and duplication of work.

We suggest that there is a pragmatic solution.  A solicitor who has been working with P, perhaps after a referral by an RPR, and who then issues a section 21A challenge could file a statement alongside Form DLA which sets out the solicitor’s involvement with P so that the court is aware of the issue of continuity when deciding which of the rule 1.2 options to select.  An accredited solicitor who wishes to be appointed as such could also file a COP9 requesting appointment.

We are very interested to hear about the experience of practitioners as the new scheme gathers pace.

Costs and test cases

In a short judgment Mr Justice Baker declined to award the Official Solicitor his costs after a CCG withdrew applications in relation to a series of test cases.  You can read the judgment here.

The case concerned applications in relation to the living arrangements of incapacitated adults for whom the CCG had responsibility.  All were living in their own home and the CCG sought clarification as to whether such individuals satisfied the “acid test”.  The CCG also questioned whether the responsibility for any deprivation of liberty was imputable to the state solely by virtue of the fact that it provided NHS care for P.  If either the acid test was not satisfied or the arrangements were not imputable to the state, of course, the adults concerned would not be deprived of their liberty for the purpose of Article 5 and thus the CCG would not be required to make an application to court for a welfare order under section 16 MCA 2005.

The Official Solicitor was invited to act for the four adults originally involved in the test case.  Two were not eligible for legal aid and it was not considered reasonable to utilise P’s funds for this purpose.  Subsequently one of these cases could proceed and the CCG applied to withdraw its application because the practical impact would be very limited; the CCG had reviewed its position in light of the OS’ analysis and the CCG considered that both the relevance and the strength of the application had been limited by the Law Commission’s proposed reforms.  The Official Solicitor sought his costs, submitting that in reality the application was akin to a civil claim where he had succeeded.

Baker J refused the application.  He gave no weight to the argument that the costs would be borne by the public purse in the form of the Legal Aid Agency stating that a legally aided party should be treated in exactly the same way as one without a legal aid certificate.  He rejected the application for costs in these terms:

 

(1) I do not accept the suggestion that this was not a typical welfare case. The application concerned a series of welfare cases in which an important preliminary issue arose on a point of law.(2) As is widely recognised, the law concerning deprivation of liberty under the Mental Capacity Act is in a state of some uncertainty. That is why it has been the subject of a review by the Law Commission whose final report contains recommendations for substantial reform. The government has now accepted the report and the majority of its recommendations, and acknowledged that the current Deprivation of Liberty Safeguards should be replaced “as a matter of pressing urgency” (see government response 14 March 2018).

(3) It was in my judgment understandable that the applicant sought guidance on the issue of the impact of the “acid test” on cases involving incapacitated adults living at home, given the large number of individuals in those circumstances for whom it is responsible. In the words of rule 159(2)(b), it was reasonable for the applicant to raise and pursue this issue.

(4) Given the constraints under which all public bodies operate, the applicant was entirely justified in keeping under review the question of whether to pursue the case. Indeed, it would have been remiss if it had not done so. The fact that the applicant decided to abort the proceedings was a reasonable decision. To use the words in rule 159(2)(b) again, it was reasonable for the applicant to decide not to contest the issue in the light of developments in the litigation as described above.

(5) Although it is arguable that the difficulties in the individual cases could have been anticipated, I do not think that the applicant’s failure to do so at an earlier stage could be described as litigation conduct of the sort to justify departing from the general rule.

(6) Although my comments in G v E (Costs) above were made in a different context, they do have some relevance here. Professionals working in this field often face difficult judgements and decisions. The applicant made the decision to ask the court to consider the preliminary issue which, as Mr Ruck Keene fairly conceded, involved propositions of general and considerable importance. Subsequently, however, in the light of developments within the cases, the applicant decided not to pursue the issue. In all the circumstances, I do not consider that its decision-making and overall conduct justifies a departure from the general rule as to costs.

Comment:  This is a useful application of the principles concerning costs to an unusual situation namely where an important preliminary issue arises in a “typical welfare case”.  Key to this was the judge’s assessment that it was reasonable for the CCG to seek guidance about the applicability of Article 5 given the significant financial impact in a time of financial constraints had the CCG been successful; but that it was also reasonable to keep the need for the proceedings under review and to seek to withdraw them when the issue, although fascinating, had become academic.