Court of Protection Handbook

HRA Time Limits Alert

COP practitioners need to be aware of the implications of a refusal by King J of an application to extend the one year time limit in AP v Tameside MBC [2017] EWHC 65 (QB). You can read the judgment here.

The claim arose from a familiar pattern of events for COP practitioners: AP had learning disabilities as a result of Down’s syndrome; he lacked capacity to make decisions as to his residence and care as well as to litigate. He was cared from by his mother until 2011 when he was removed by the local authority and placed in respite accommodation for two and a half years until he returned home in August 2013. In the meantime his mother had been acquitted of an offence of wilful neglect in relation to another family member. The respite placement was not a registered care home so DOLS could not be used: nor was an application to the Court of Protection made at any time despite an IMCA suggesting this to the local authority in 2011.

AP was represented (via his family) by solicitors from 2012: a claim for damages under the HRA was issued in 2016.

The court had to decide whether it was ‘`equitable having regard to all the circumstances” to allow an extension under s7(5)(b) HRA 1998.

AP argued that although his lack of capacity did not displace the limitation, it should create a “rebuttable presumption” in favour of an extension. In addition to relying on some delays caused by –for example- problems in securing funding, the claimant argued that the defendant had been on notice of the potential claim at least since the release of the independent social worker’s report.

The local authority argued that the claimant had been represented by specialist solicitors since 2012 and could have brought the claim years ago.

The judge concluded:

there is no predetermined list of relevant factors in relation to s 7(5) although proportionality will generally be given weight;
lack of capacity does not “carve out” a rebuttable presumption, although it is a factor to be taken into consideration- here the claimant had family members and specialist solicitors looking after his interests, reducing the weight to be given to this factor;

the court’s assessment of the merits and value of the underlying claim is a relevant factor.

King J refused to grant the limitation because:

the delay had been considerable
the claimant had been consistently represented since 2011 firstly by the IMCA, then his family, and since 2012 by specialist solicitors. It was “inexplicable” that they had not taken steps to protect his position.
there was a real risk of unfairness and prejudice to the local authority in allowing the claim to proceed – it would be a huge administrative burden
the claimant would suffer prejudice if he could not pursue his claim but this did not equate to injustice.

This claim was brought in the QBD but the principles governing extension under s7 (5) HRA will also apply in cases where the claim is brought in the COP. It is quite common for a COP practitioner to become aware of a convention violation which may have taken place some time before COP proceedings are brought: for example P may have been placed in a care home in circumstances where the decision-making is very unclear; there may then be a period where P is de facto detained without an authorisation; once one is granted there may be sometime before a s21A challenge is initiated. In cases where the violation can be seen to have been brought to an end with the use of DOLS, then the one year time limit will begin to run from the date the violation ceased. If at the expiry of the one year P was unrepresented because no challenge had been made then clearly this is a factor that would be taken into account (although the fact that an IMCA was instructed was relevant in AP’s case). However a litigation friend for P cannot assume that either the COP or the civil courts will take a relaxed attitude to time limits. Those acting for litigation friends should:

ask themselves at an early stage whether there is any reason to believe that P’s convention rights have been breached;

ensure they diarise the expiry date;

if this has passed, consider asking the COP to grant an extension for a limited period (assuming that it is anticipated that the claim will be brought in the COP), with case management directions;

if it is clear that for some reason it will not be possible to make the application in the COP in time, ask for an extension;

if the intention is to apply outside the COP in the QBD or county court, ensure that a claim is made as soon as possible.

LAG Community Care Law Conference 2017

Matching the rhetoric of rights with reality

10 February 2017, London

EARLY BIRD OFFER EXTENDED- SAVE £50 ON COURSE FEES FOR BOOKINGS BEFORE 23 JANUARY 2017!

The Care Act 2014 was billed as the ‘most significant reform of care and support in more than 60 years, putting people and their carers in control of their care and support’. Now that it has had time to bed down, the LAG Community Care Conference 2017 considers the progress made to achieving this ambition: whether the political rhetoric has been matched by the reality on the ground.

Speakers include:

Professor Luke Clements
Paul Bowen QC
Richard Gordon QC
Stephen Knafler QC
Steve Broach Carolyn Goodall
Emily Holzhausen
Steve Hynes
Michael Mandelstam
Sophy Miles
Alex Ruck Keene

The conference brings together leading experts in this field who will provide an overview of the new legal scheme and details of case law and policy developments since the Act came into force in April 2015.

Draft programme

9.00 Registration

9.25 Conference open Steve Hynes,Legal Action Group

9.30 Opening address Stephen Knafler QC, Landmark Chambers

10.05Master Classes A

1. Challenging cuts in care packages – Steve Broach, Monckton Chambers and Jamie Burton, Doughty Street Chambers

2.Carers and the legal landscape – Emily Holzhausen, Carers UK

10.50 Break

11.10 Keynote address

Matching rhetoric with reality – Luke Clements, Cerebra Professor of Law at Leeds University

11.45Master Classes B

3. Charging and the future of paying for care – Carolyn Goodall

4. Safeguarding adults – Michael Mandelstam

12.30 Lunch

13.30The Care Act 2014 – is it working?

Discussion, questions and comment (with morning speakers on Panel)

14.15Master Classes C

5. NHS Continuing Healthcare law – Luke Clements, Cerebra Professor of Law at Leeds University

6. Care services and people from abroad – Stephen Knafler QC, Landmark Chambers

15.00 Break

15.15 Deprivation of Liberty Safeguards (DolS) and the Care Act 2014 Duties

Paul Bowen QC, Brick Court Chambers, Sophy Miles, Doughty Street Chambers and Alex Ruck Keene, 39 Essex Chambers

16.15 Closing keynote Richard Gordon QC, Brick Court Chambers

Please note this programme is liable to change.

Download a booking form here

To book online here

Who should attend:

Legal aid practitioners, human rights lawyers, health and social care lawyers, advisers, local authority social services and legal departments, health authorities and NHS trust managers, residential care managers, directors of public health, disability rights organisations, non-governmental organisations and charities.

Section 21A applications and legal aid

We reproduce below a version of the case comment on the case of Briggs v Briggs [2016] EWCOP 48 which appeared in the December 2016 39 Essex Chambers Mental Capacity Law Newsletter.

Summary

In this case, Charles J had to decide whether it was possible for the question of whether it is a person’s best interests to continue to be given clinically assisted nutrition and hydration (‘CANH’) to be determined in proceedings brought under s.21A MCA 2005. The question arose because the applicant – the wife of, and RPR for a man in a minimally conscious state – brought an application under s.21A MCA 2005 challenging the DOLS authorisation in place at the hospital he was in. She did so on the express basis that doing so would allow her to claim legal aid on a non-means-tested basis so as to be able to have legal representation to be able to argue her case that continuation of CANH was not in his best interests. Her position was opposed by the Official Solicitor, the Legal Aid Agency and the Secretary of State (as the Ministry of Justice and Department of Health collectively) on the basis that:

1. In the Official Solicitor’s case, non means tested funding is not available to present arguments relating to the care, support or treatment of a P as they related to conditions of detention, and were therefore outside the scope of s.21A (Article 5 not relating to conditions of detention);

2. On the Secretary of State’s case, such funding was only available where the issues related to “physical liberty.”

Charles J, in an extensive and wide-ranging judgment, came to the very clear conclusion that both of these arguments were wrong, and that it was entirely proper for the Court of Protection on a s.21A application to consider the question of whether CANH was in Mr Briggs’ best interests as part and parcel of the discharge of its functions under s.21A MCA 2005. The following conclusions from his judgment are of particular relevance or importance:

1. The clear conclusion that a DOLS authorisation does not authorise the care plan for, or medical treatment of P, or protect those who are providing them from liability for so doing. It is limited to authorising the deprivation of liberty that those acts create (paragraph 48);

2. The determination of whether the deprivation of liberty is in P’s best interests, necessary and proportionate “has to involve consideration of P’s circumstances in a hospital or care home and so of the care, support and treatment proposed or provided to meet P’s needs in them even if it is limited to a consideration of their effect” (paragraph 50), and hence “the determination of the questions posed by the definition of the best interests condition must involve a consideration of: i) the impact of possible and available alternatives and issues of degree, and ii) as far as reasonably ascertainable P’s past and present wishes and feelings, beliefs and values and factors that P would be likely to consider if he were able to do so” (paragraph 52);

3. That generally the COP should take control of all aspects of the case when proceedings are brought under s.21A MCA (even if an authorisation should remain in place to allow non-means-tested legal aid to continue to be justified: paragraphs 29-34). This was particularly the case in the proceedings before him given the nature of the CANH best interests issue (paragraph 70), in which the determinative or central issue was whether CANH is in Mr Briggs’ best interests and the conclusion on it should found an order under s. 16(2) MCA 2005. The determination of that issue by the COP would found and so was directly relevant to its consideration of its exercise of its functions under s.21A (which it can exercise whether or not proceedings have been issued under s.21A) (paragraph 76);

4. Whatever the precise requirements of Article 5 ECHR, a literal construction of DOLS shows that they went beyond that required to meet Article 5 and effectively include the best interests test that is applied whenever a decision has to be made pursuant to the MCA for a person who lacks capacity to make that decision himself (paragraph 87). This showed that:

91. […] in a case such as this when the purpose of the placement in the hospital is obviously for care and treatment the “all or nothing approach” advanced effectively on the basis that P will continue to be deprived of his liberty whatever regime of treatment is put in place (and so whether or not CANH is in Mr Briggs’ best interests) runs contrary to a best interests consideration of the circumstances P (Mr Briggs) is in on the ground as it seeks to exclude a consideration of P’s views etc. under s. 4(6) and whether the conditions can be improved or made less restrictive under s. 1(6) of the MCA.

Alternatively, if it is said that the views of P on (life sustaining or other) treatment can be taken into account in considering whether he should be deprived of his liberty (or his personal liberty should be removed) this takes one back to the central issue in this case namely the impact of Mr Briggs’ views etc. under s. 4(6) on whether treatment should be withheld with the consequence that he should be allowed to die. It would be very artificial and in my view callous to say that this was irrelevant to the issues relating to his physical liberty, or the termination of the exiting DOLS authorisation, because during the period after the cessation of the CANH leading up to his death his physical liberty would not change even if (as is at least likely) he moves from the hospital to a hospice.

5. The acknowledgement that the best interests assessor will not be able to carry out the intense scrutiny that the COP can and would have practical difficulties in challenging the medical decisions that found protection from liability under s. 5 MCA. Charles J noted, however, that the assessor could reach his best interests assessment on the basis of the views of the treating team leaving it to P or his RPR to challenge the authorisation or put a condition on the authorisation or limit its duration to enable any dispute to be put before the COP (paragraph 94);

6. Further, even if the best interests requirement under DOLS was limited in the way that the Official Solicitor and the Secretary of State argued, the best interests test as then applied by the Court of Protection in determining whether CANH should be continued was related to matters arising under s.21A(2)(a)-(d), because (1) it was related to the best interests condition of the best interests requirement; (2) and provided the answers or information relevant to the answers to the questions of: (a) the period of the standard authorisation (e.g. until a move to a hospice or a rehabilitation unit); (b) the purpose of the standard authorisation, namely whether the treatment should or should not include CANH; and (c) conditions of the standard authorisation (e.g. about preparations to be made for a move). These answers informed – Charles J held – what the COP can order under s.21A(3) by way of variation or termination of the standard authority itself or by direction to the supervisory body (paragraphs 96-99). Charles J noted in this regard that:

This view of the width of what the COP can properly do under s. 21A is confirmed when other types of case are considered. For example, when P is in a care home the best interests issues can encompass changes in the care plan (incorporated into or on which the standard authorisation is based) involving less restrictive options, the giving of medication covertly or in particular circumstances, the use of restraint, more visits to the community and contact. Even if they are outside the factors to be considered under the qualifying requirements (and so the best interests condition) they:

i) inform and so relate to the matters referred to in s. 21A (2)(b) to (d), and

ii) inform the order or orders to be made under s.21A(3), (6) and (7) in respect of the DOLS authorisation that has been granted (and if necessary extended by the COP applying the approach in Re UF).

7. Finally, Charles J noted that, on a purposive intention of the legislation, Parliament would not have intended the COP to be concerned with the distinctions advanced in this case by the Secretary of State, the LAA and the Official Solicitor:

108. Absent the issue relating to the availability of non means test legal aid, which it is common ground is irrelevant, these distinctions are not agreed between them, give rise to fine, difficult and potentially emotionally draining issues (e.g. whether a decision that leaves out of account the views etc. of P on whether he should be detained at place A or place B relates to his personal liberty or a deprivation of his liberty within Article 5 having regard to its subjective element) and are irrelevant because the COP can deal with all issues in this case in an application brought in reliance on s. 21A or an application brought seeking orders under ss. 15 and 16 of the MCA. […]

Charles J therefore held that Mrs Briggs could properly raise the issue of whether CANH should be continued as part of her s.21A challenge as RPR for her husband. We address the substantive decision in relation to her husband’s treatment in the separate case comment below.

Comment

On one view, it would appear odd that a s.21A application could be used as a vehicle to challenge decisions about CANH, and it is undoubtedly the case that Mrs Briggs was “lucky” that there happened to be in place a DOLS authorisation at the hospital to allow her to do so (note that Charles J expressly did not decide whether or not in fact Mr Briggs was deprived of his liberty, as this was assumed to be the case for purposes of the preliminary issue decided here).

However, once one steps away from the specific place that CANH has as a type of serious medical treatment (‘SMT’) and the mindset of SMT cases, Charles J’s logic would seem impeccable. DOLS may have been designed to plug the Bournewood gap, and to that end could have been limited solely to a determining whether or not the deprivation of liberty was necessary and proportionate (the test for Article 5 purposes). However, the scheme undoubtedly went further to include a specific best interests requirement which, in turn, requires the application of the best interests test under s.4 MCA 2005. Once the best interests genie was let out of the bottle, that must carry with it the connotation that those concerned with considering the requirement (and the court on a s.21A application) must have a wide view of the nature and purpose of the authorisation and – in turn – asking whether the care and treatment which gives rise to the need for it is, in fact, in the person’s best interests.

It is, perhaps, not surprising – given the implications for legal aid in s.21A applications – that the Secretary of State/Legal Aid Agency are seeking permission to appeal to put the best interests genie back in its bottle.

Re SRK – Court of Appeal dismisses appeal

The Court of Appeal has dismissed the Secretary of State’s appeal against the decision of Charles J in Re SRK [2016] EWCOP 27. By way of refresher, Charles J found in that case that the state was indirectly responsible for “private” deprivations of liberty arising out of arrangements made by deputies administering personal injury payments. The Secretary of State for Justice (‘SSJ’) appealed the decision on two grounds, contending that:

1. The combination of the existing civil and criminal law and the obligations of public bodies to safeguard vulnerable individuals were sufficient to satisfy the positive obligation of the State under Article 5 where the day to day care of a person, who was objectively deprived of liberty but lacked capacity for the purposes of the MCA to consent to that loss of liberty, was being provided entirely privately rather than by the State. In particular, the SSJ contended that Charles J was wrong to conclude that, in such a situation, the State’s positive obligation under Article 5(1) ECHR can only be discharged if a welfare order is made by the CoP under s.16 MCA authorising the deprivation of liberty pursuant to s.4A(3) MCA;

2. Responsibility for a “private” deprivation of liberty could not be attributed to the State in a case such as that of SRK, there was no reason for the local authority or any other public body to have any suspicions about abuse, that there was some deficiency in the care provided to the person, that something has been done that was not in their best interests or that the deprivation of their liberty was greater than it could and should have been.

Sir Terence Etherton MR, giving the sole reasoned judgment, had little hesitation in dismissing both of these grounds of appeal.

State’s Article 5 obligations

The only live question on the appeal was whether SRK’s deprivation of liberty was imputable to the state under the third limb identified in Storck: i.e. by way of its failure to discharge its positive obligation to protect him from deprivation of liberty contrary to Article 5(1).

The Master of Rolls held, whilst, that the SSJ had been correct to identify that the State’s positive obligation under Article 5(1) is to take reasonable steps to prevent arbitrary deprivation of liberty, Charles J had adequately expressed that test in his own language. As Charles J had noted in his judgment, Storck does not help on whether, in any particular case, the proper or the defective performance of a regime that has been put in place pursuant to the positive requirement of Article 5(1) would amount to a violation of that positive obligation. In other words, the Master of the Rolls held (at para 63) “Storck does not identify what has to be in place to meet the minimum requirement of Article 5(1).”

The Master of the Rolls accepted that the ECrtHR in Storck left open the possibility that a regime short of the requirement of a court order and court supervision might be adequate for the State to meet its positive obligations under Article 5(1). It was the SSJ’s case, he noted, that “notwithstanding the absence of a requirement for a welfare order from the CoP, the United Kingdom’s existing domestic regime of law, supervision and regulation in respect of incapacitated persons who are being treated and supported entirely in private accommodation by private providers is sufficient compliance with the State’s positive obligation under Article 5(1), at least where the public authorities have no reason to believe that there has been any abuse or mistreatment” (para 65). The SSJ relied particularly on the functions of the Care Quality Commission, the functions of the Public Guardian, the professional responsibilities of doctors and other health professionals, the safeguarding obligations of local authorities, and (in the words of the SSJ’s skeleton argument) “the general framework of the criminal justice system and civil law.”

However, Sir Terence Etherton MR held, Charles J had been both entitled, and right, to dismiss that argument:

74. The critical point, as Ms Nageena Khalique QC, for the Council, emphasised, is that, although local authorities and the CQC have responsibilities for the quality of care and the protection of persons in SRK’s position, they will only act if someone has drawn the matter to their attention and there is nothing to trigger a periodic assessment. The same is true of doctors and other health professionals. Save where there are already proceedings in the CoP (when the functions of the Public Guardian will be engaged), the current domestic regime depends on people reporting something is wrong, and even then it will only be a notification of grounds for concern at that specific moment in time. That may be particularly problematic in cases where no parents or other family members are involved in the care and treatment. It does not meet the obligation of the State under Article 5(1) to take reasonable steps to prevent arbitrary deprivation of liberty.

75. For the same reasons, as was stated by the ECrtHR in Storck, criminal and civil law sanctions which operate retrospectively after arbitrary deprivation of liberty has occurred, are insufficient to discharge the State’s positive obligation under Article 5(1).

Sir Terence Etherton MR therefore held that:

78. The Judge was fully entitled, and right, to conclude in the circumstances in paragraphs [143] and [146] that, absent the making of a welfare order by the CoP, there are insufficient procedural safeguards against arbitrary detention in a purely private care regime.

79. The fact that, as the Judge acknowledged in paragraph [147], in the present and in many other such cases, a further independent check by the CoP will add nothing, other than unnecessary expense and diversion of resources, does not detract from the legitimacy of his conclusion since, as he observed in paragraph [148], there are other cases where the person lacking capacity will not have supporting family members or friends, and deputies and local authorities may not act to the highest requisite standards. No doubt, as the Judge observed in paragraph [148(v)], the practical burden of such applications would be reduced, in a case such that of SRK, by a streamlined paper application for the making of the initial welfare order and paper reviews.

The relevance of abuse

Sir Terence Etherton MR was equally dismissive of the second ground of appeal:

83. Turning to the second substantive part of Ms Kamm’s submissions, I do not accept the SoS’s argument that, since each case of an alleged breach of Article 5(1) is fact dependant, there was no breach by the State of its positive obligation under Article 5(1) in the present case because SRK’s care regime was in his best interests and was the least restrictive available option, and there was nothing to suggest the contrary to the Council or that there was any abuse. That is an argument that, even where there is objective and subjective deprivation of liberty of an individual, of which the State is aware, there can be no breach of Article 5(1) if the individual is being cared for, supported and treated entirely privately and happens to be receiving a proper standard of care in accordance with the requirements of the MCA at the particular time the State becomes aware of the deprivation of liberty. There is nothing in the jurisprudence to support such an argument. It runs counter to the interpretation and application of the spirit of Article 5(1) in, for example, HL and Cheshire West, in which the focus was entirely on the State’s duty to prevent arbitrary deprivation of liberty and not on the quality of care and treatment actually being provided or, indeed, on whether the best and least restrictive treatment would not have involved deprivation of liberty of the individuals in those cases.

By way of concluding observation (without express reference to the Law Commission’s work, but surely with this in mind), the Master of the Rolls noted:

83. inally, it is important to note that, while an application to the CoP is necessary in the present state of law and practice for the State to discharge its positive obligation under Article 5(1), such a step might not be essential if a different legislative and practical regime were to provide for proactive investigation by a suitable independent body and periodic reviews. It would, as Ms Kamm said, be for the Government to fill the gap as it had done in the case of the Bournewood gap.

Comment

It is difficult to see how the Court of Appeal could have reached any other conclusion than that reached by Sir Terence Etherton MR, although it is notable that he did not seem to have reached it with the same degree of reluctance as did Charles J.

The ratio of the decision of the Court of Appeal would appear – to my mind – to apply to “private” arrangements made by any court appointed deputy (whether or not they are administering a personal injury payout). Trickier is the question of whether or not they apply to “private” arrangements made by an attorney as an attorney, unlike a deputy, is not appointed by the state. However, Charles J had at first instance referred to the potential for an attorney paid personal injury damages as one of those who should be required to know that the regime of care and treatment creates a deprivation of liberty within Article 5(1), and Sir Terence Etherton MR made no comment upon this (see para 60).

More broadly, in the circumstances, it seems to me that there is now really very little distinction between “public” and “private” deprivations of liberty: wherever the state is or, ought, to be aware of a person being confined under arrangements to which they cannot consent, then they will need to take steps to ensure that confinement is authorised. Absent legislative change to enable administrative procedures to be used, it will be necessary to obtain authority from the Court of Protection under the Re X procedure.

It is in this regard unfortunate that the Court of Appeal did not take the opportunity to confirm whether it is, in fact, the responsibility of the deputy (or – by analogy – attorney) to seek such an order in such cases. What, of course, is particularly problematic with any approach which requires steps to be taken on behalf of the person concerned is that they will inevitably cost money, money which (in most cases) will have to come from their estate. In cases such as SRK’s, it is possible to factor this into any personal injury award, but in other cases it does come dangerously close to suggesting that people should pay for the privilege of being detained.

Until and unless either this decision is successfully appealed, or the Supreme Court or Strasbourg determines that “deprivation of liberty” has a narrower meaning than that given at present, it remains the case, therefore, that the tentacles of the state will – inevitably – have to extend ever further into private settings in the name of protecting Article 5 rights. I have my own thoughts as to how we might find a principled way to define deprivation of liberty in a way which returns it to its core meaning of coercion, but those are for another day.

Court of Protection Handbook Second Edition now out!

We are very pleased to announce that the second edition of the Court of Protection Handbook is now available from the LAG bookstore (as paperbook and eBook). The new edition has been rewritten to take account of the amendments made by the Court of Protection (Amendment) Rules 2015, the Case Management Pilot that started in September 2016 and the Transparency Pilot that started in January 2016, along with coverage of the Re X procedure for judicial authorisation of deprivation of liberty. It also includes new practical guidance for improving the participation of P.

The website has also been thoroughly updated to include a whole new suite of – free – downloadable precedent orders (including those used by the judiciary in the Case Management Pilot). It also, as before, serves an updater for the book. As ever, feedback is very welcome, to alex.ruckkeene@39essex.com.

Objections, DOLS and the Court of Protection

The long-awaited judgment from Baker J following up on AJ has just been published. A full report will appear in the next 39 Essex Chambers Mental Capacity Law Newsletter, but in brief Baker J had to address the question of: “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?”

Having answered the question in characteristically erudite fashion, Baker J then very helpfully gave (at para 86) general guidance for the future, reproduced below.

(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,

(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,

(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.

DOLS reform delayed

The Law Commission has announced today that the next stage in the reform of DOLS – namely the publication of the Commission’s final report and draft legislation- will now be in March 2017, rather than before the end of the year.

In an email to stakeholders, Tim Spencer-Lane, who leads the project wrote:

“The reason for the delay is the complexity of the task of drafting legislation on such an important issue. It is vitally important to get the law right here. Badly drafted, over-complicated law is a big part of the problem with the current DoLS, and we do not want to fall into the same trap again.

We are very aware that the project deadline was brought forward at the request of the Department of Health and for a good reason: there is an urgent need for the system to be improved. We know too that many stakeholders are waiting for our report and draft Bill and will be disappointed with any delay. For this we apologise.

But we are convinced that it is far more important to deliver a fully completed draft Bill that can deliver effective safeguards to those being deprived of liberty. We are also confident that our new publication date will not delay the introduction of legislation into Parliament, should the Government wish to do so. It will be for Government to decide how to take forward the recommendations and draft Bill.”

We will continue to update readers as soon as there is further news.

LAG publishes new book on adult social care law

Adult Social Care Law

Stephen Knafler QC, Landmark Chambers

‘An incredibly useful resource for anyone practising in the area … Across 29 chapters, covering the gamut of adult social care law …the author has provided the relevant materials to allow safe navigation through the ever more complex and choppy waters of this area … Throughout the book, the fruits of careful editorial decisions shine through and reflect Stephen Knafler’s huge expertise in the area.’ Alex Ruck Keene, Mental Capacity Law and Policy. (See full review here )

‘[This] is an excellent book … whilst good for people coming new to the subject is also of use to seasoned practitioners. Someone with a basic grasp could spend a day with a chapter in this book and come over almost expert on the subject … The chapter on consultation is so valuable to me … For most LAs the book would be worth buying for that subject alone.’ Local authority solicitor

This comprehensive new book guides all those advising people needing care and support through the complex and constantly moving web of legislation, guidance and case-law that is adult social care law.

In recent years, due to ‘financial austerity’, social and health care bodies have increasingly made decisions involving increases in charges or reduction in services that have been subject to challenge. Adult Social Care Law brings together all the significant domestic and European cases that form the basis of adult social care law and many other cases in overlapping areas such as the NHS, mental health and support for asylum-seekers and persons from abroad.

Over 500 case summaries, selected by one of the leading practitioners in this area of law, are presented with a succinct headnote, a clear outline of facts and a summary of the judgment – often with extensive citations – to aid the busy practitioner to quickly and efficiently identify the most relevant cases. Arranges thematically, each chapter is introduces with an overarching summary of the legal framework and the cases cross-referenced with the relevant legislation and statutory guidance, making this an essential reference guide.

Adult social care law is essential reading for lawyers, advisers, carers, health and social care professionals, local authorities and regulators

Read the Introduction here

Read the Contents here

Read chapter 8 on Community Care Assessments

Pb 978 1 908407 78 8 982pp October 2016 £65

Order online or telephone the order line: 01235 465 577

Also available as an ebook. Read information on LAG ebooks here.

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s21A MCA can be used to bring SMT case

In Re Briggs [2016] EWCOP 48, Charles J has held that it is possible for the question of whether it is a person’s best interests to continue to be given clinically assisted nutrition and hydration (‘CANH’) to be determined in proceedings brought under s.21A MCA 2005. Charles J concluded that the question was an issue to be considered in determining the existence of the best interests condition, included in the definition of the best interests requirement, which is one of the requirements for the grant of a DOLS authorisation, and hence by the Court of Protection under s.21A MCA 2005. Although an apparently technical question, a great deal turned upon his conclusion because it meant that the applicant – Lindsey Briggs – is eligible for non means tested legal aid funding for representation on the issue of whether it is in her husband’s best interests to be continue to be given CANH that is to be determined by the COP at a hearing presently fixed to take place at the end of November.

The case is also of some considerable interest for Charles J’s analysis of what precisely DOLS involves, and his confirmation (at paragraph 87) that they go beyond what is required to meet Article 5 and effectively include the best interests test that is applied whenever a decision has to be made pursuant to the MCA for a person who lacks capacity to make that decision himself.

We will have further analysis of this case in the December issue of the 39 Essex Chambers Mental Capacity Law Newsletter.

New guidance issued on facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings

Charles J has recently issued guidance on facilitating participation of ‘P’ and vulnerable persons. It is intended to allow sharing of good practice in the creative development of ways in which P can in fact be put at the heart of proceedings, and draws upon the important work done by the Advocates Gateway and also Nicola Mackintosh QC. Importantly, perhaps, it shows that there are many steps which can be which do not necessarily require the expenditure of money; instead they require thinking outside the conventional framework within which P is expected to bend to the will of the court.