Delay in a Section 21A Challenge to the Capacity Requirement

By Celia Kitzinger, 16th March 2021

Editorial note, 18th May 2021: Another blog about this case, with some very useful background information concerning the causes of delays, has now been published. It’s by Ashley Bradley, of MJC Law, one of the solicitors involved in this case. You can read it here.

Mr B is in his late fifties and he hates where he lives – in a self-contained flat in a care home for people with mental health problems.  He’s described it as “like a prison”.

He can’t leave and live somewhere else because he is deprived of his liberty under a “standard authorisation”, due to expire in about six months time.  

Mr B has a diagnosis of schizophrenic disorder – and schizophrenia is one of the care homes “specialist care categories”.  He has struggled in the past with independent living (paying rent, managing repairs, household tasks). He has been vulnerable to exploitation in the community.  In his current home, he receives regular care and support from staff members. 

Nonetheless he’s “relatively independent”.  He prepares his own meals in his kitchenette, although he complains about having only a microwave and no oven or hob so he’s limited in what he can cook.  He’s described as “independent with self-care and compliant with his medication” (i.e. he washes and dresses himself, manages the laundry, and takes his pills when prompted). 

He’s been saying for at least a year that he wants to leave the care home and live “in the community”.  He accepts that he’d need a package of support (e.g. to help him manage his money and medication) and he’s content to accept visits from a Community Psychiatric Nurse (“to check I am okay and mentally well”).  

He was challenging his deprivation of liberty at a hearing before Mr Justice Cobb (COP 13536008) on 15th February 2021. 

The main basis for the challenge is that Mr B has the mental capacity to make his own decisions about where he lives and what care he receives.  He says he has that capacity, and so does the independent expert consultant psychiatrist appointed by the court.

One obviously concerning aspect of this case is that Mr B’s (possibly unlawful) deprivation of liberty has been going on for a long time.  I’m not sure when he moved into the care home, or at what point he started objecting to living there, but proceedings challenging his detention began more than a year ago, in January 2020.   

And still no final determination has been made.  A final hearing has been listed before Mr Justice Cobb on 27th April 2021, which will be sixteen months after proceedings began.

Right to Liberty

Nobody disputes that Mr A is deprived of his liberty.  It was agreed that the conditions of his detention meet the ‘acid test’ in  P v Cheshire West and Chester Council; P and Q v Surrey County Council [2014] UKSC 19 (” Cheshire West“): he is “under continuous supervision and control and is not free to leave”.  Although he can “access the community” (I think this means he’s allowed to walk out of the care home grounds and get a bus into town), he must tell staff where he is going and when he’ll be back, and if he didn’t return when expected they would report him missing to the police.

Article 5(1) of the Human Rights Act states that: “everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty [unless] in accordance with a procedure prescribed in law”.  

The Deprivation of Liberty Safeguards (DOLS) is the procedure prescribed in law in England and Wales when people are deprived of their liberty in care homes or hospitals.  

It was introduced into the Mental Capacity Act 2005 after the important case of HL v UK – “the Bournewood case”.  (For a compelling account of what happened, and its human rights implications by the family involved click here).  For the purposes of this blog, the key point is that the European Court of Human Rights found that the UK was in breach of Article 5 of the European Convention on Human Rights in relation to the detention of incapacitated people. The court said there should be procedural rules by which the admission and detention of incapacitated persons is conducted.

The procedure now laid down to be followed is that the care home or hospital that thinks it needs to deprive someone of their liberty (the “managing authority”) has to ask for this to be authorised by the local authority where the person is ordinarily resident (the “supervisory body”).   This is called “requesting a standard authorisation”.  It will only be granted if certain conditions are met: for example, the person must be living with a ‘mental disorder’, must lack capacity to make decisions for themselves about restrictions on their liberty relating to care and treatment, and the proposed restrictions must be in their best interests.  A standard authorisation lasts at most for a year, after which it must be renewed.

Article 5(4) of the Human Rights Act states that: “Everyone who is deprived 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 the detention is not lawful.”

The Mental Capacity Act (MCA) 2005 provides for this via the appointment of a Relevant Person’s Representative’ (RPR) to represent the person who is deprived of their liberty. The RPR has the right to require a review of the person’s deprivation of liberty at any time and can also challenge it in the Court of Protection (under Section 21A MCA 2005).  There is no gatekeeping process: P has a right to apply to the court under s21A in his or her own right, irrespective of whether the RPR supports P’s application and RPRs should not allow their own views about the merits of an application to hold them back either from making the application themselves or from supporting P in doing so. The local authority is responsible for ensuring that an RPR and/or advocate fulfills the obligation to “act with diligence and urgency to ensure” to ensure that such challenges are “brought before the court expeditiously” and if not, should consider – as a last resort – bringing the matter before the court itself. This is all made abundantly clear in the judgment by Baker J in AJ v A Local Authority in which he held as a fundamental principle’ that there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court”.

So, in this case, Mr B has an advocate who instructed a legal team on his behalf to bring a case to the Court of Protection under s. 21A of the Mental Capacity Act 2005 to decide whether his detention under a standard authorisation is lawful or not.  

Mr B’s position

Counsel on behalf of Mr B, Tom Hughes of St John’s Buildings, submitted to the court that Mr B’s continued detention is unlawful.  This is because the independent expert report from November 2020 (based on interviews with Mr B in early October 2020 and again in mid-November 2020) concludes that Mr B has capacity to make all the relevant decisions. The expert psychiatrist found no evidence to suggest that Mr B’s mental illness impacted on his ability to understand, retain, weigh up, or communicate information about any of the decisions before the court.  

Counsel invited the court to decide at this hearing, on the basis of the expert report, that Mr B has capacity to conduct proceedings and to make his own decisions about residence and care.  As such, the mental capacity condition for continuing to deprive Mr B of his liberty is not met.  The court should then properly terminate the standard authorisation and conclude the proceedings.

Alternatively, if the court were not to accept the expert findings, and to find (as the local authority says) that Mr B lacks capacity to make his own decisions then – says counsel for Mr B – the condition of ‘best interests’ is not met, because Mr B is being restricted unnecessarily, and against his clearly and consistently stated wishes.  In that event, Mr B would want to move to a less restrictive environment as soon as possible.

There was no suggestion that the authorities should simply let Mr B leave the care home and wash their hands of him.  Mr B himself says that he requires various kinds of support, including help finding alternative accommodation, support with medication and assistance with his finances.  He should accordingly be entitled to relevant care under the Care Act 2014 and s.117 of the Mental Health Act 1983, and should be able to receive a package of support while living in the community.  That is what Mr B wants.

The local authority’s position

The local authority, represented by Gail Farrington of Wilberforce Chambers, does not accept the findings of the independent psychiatric expert.  The local authority relies in part on an earlier assessment (in September 2020) from a social worker carrying out a best interests assessment as part of the application process to renew the standard authorisation. That report finds that Mr B lacks capacity to make decisions about his accommodation and care.  The local authority identifies ‘gaps’ in the independent consultant psychiatrist’s report and says that those who know Mr B well believe that he has no insight into the level of care and support he needs.  He doesn’t understand what the consequences will be of leaving his current accommodation and the harm that could befall him as a result of this decision. They want to ask the expert further questions – or, if he is not available, to appoint an alternative expert.

“The need for speedy determination”

Over the course of more than a year, the court has had the opportunity to collect evidence on Mr B’s capacity and to make a capacity determination one way or the other. It still has not done so, and counsel for Mr B emphasised how harmful this delay has been.  He said it would cause “great distress to my client” if the outcome of the hearing were merely to continue to detain him and to delay the decision for another hearing – not least because Mr B knows that the expert psychiatrist believes him to have requisite capacity.

Counsel for Mr B referred to two recent judgments as mandating a speedy resolution to this case, both heard by the Vice President of the Court of Protection, Mr Justice Hayden.

In  DP v London Borough of Hillingdon [2020] EWCOP 45 (28 September 2020), Mr Justice Hayden said of section 21A cases 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’”.  He reiterated later in the same judgment that “the guiding principle is the need for speedy determination of the lawfulness of detention mandated by Article 5(4)”.  

In London Borough of Tower Hamlets v PB [2020] EWCOP 34 (3rd July 2020), Mr Justice Hayden emphasised the importance of “the presumption of capacity” – as articulated in the MCA 2005 1(2): “A person must be assumed to have capacity unless it is established that he lacks capacity.”  This presumption, said Mr Justice Hayden “is the paramount principle in the MCA. It can only be displaced by cogent and well-reasoned analysis” (para. 51).  

Counsel for Mr B argued that there is now a cogent and well-reasoned analysis from an independent expert that Mr B has capacity to make his own decisions about care and residence, and that to permit the local authority’s request for yet further opportunity to rebut the presumption of capacity would run counter to the principle of speedy determination – and to the presumption itself.  There is a risk, he said, of setting the capacity bar too high (thereby discriminating against people with impairments in the functioning of mind or brain) and of falling into the trap of what Baker J (in CC v KK and STCC) has called the ‘protection imperative’.

The outcome

It’s the judge, and not the expert witness, who has the power and responsibility of deciding whether or not the person at the centre of the case has the relevant capacity.  

Faced with two conflicting reports – one from the expert witness saying Mr B does have the requisite capacity, and one from the local authority social worker saying that he doesn’t – the judge said it was “difficult for the court to reach a definitive statement”.

Having established that the independent psychiatric expert witness would be able to answer written questions from the local authority by the end of March and was able to appear before the court on 27th April 2021, he listed another hearing for that date.

The judge asked (as Mr B’s counsel had also proposed) for best interests to be considered in parallel with the continuing effort to establish the question of capacity.  This is (in my view) very important – and contrasts with other cases I’ve observed where questions of best interests have been delayed (on one occasion for years) until the issue of capacity has been resolved, resulting in insupportable delay in resolving issues for P. 

 An independent social worker will now be instructed to assess Mr B’s best interests in relation to residence and care and to produce an updated report on his wishes and feelings.   In the event that Mr B is found after all not to have capacity to make his own decisions about residence and care, matters can then still be progressed on 27th April 2021 without further delay.  As the judge said: “if in fact I have to make decisions around best interests, I need to know what the options are”.  

The judge asked for options to be investigated – including a detached building in the grounds of the care home that might offer Mr B more independence. Apparently Mr B had already been offered and refused that option – but it was still available and (as counsel for the local authority put it), a move to a more independent living arrangement still within the remit of the care home offers “an opportunity to provide evidence for the court going forward”.  

Mr B was in court during this hearing – although I did not see or hear from him.  He had spoken to the judge shortly before this hearing (as he did also back in January last year).  Mr Justice Cobb addressed him directly:

I hope. Mr B, you will understand that in order to make the best decision for you, I must be sure I’m making a decision that is sound and robust – and that when those who care for you challenge the conclusion of [the expert witness], I can’t brush that aside.  It seems to me right that I should allow them to put those challenges to [the expert witness] and see what he has to say about them.”

Reflecting on the option of the detached building in the care home grounds, the judge said:

“We discussed that in our chat before the court hearing.  I would simply say I think it would be helpful for you to have a conversation with the social work team about that.  It would offer you more independence and rather better cooking facilities than you currently have. That may be an advantage.  I would encourage you to think hard about that. Even if it’s a short term measure, it may be a better one than the one you currently have in your flat.”

Before leaving the (virtual) courtroom, the judge thanked counsel and the members of the public who attended (“thank you for your interest in Court of Protection proceedings”). His last words were “best wishes, Mr B and I look forward to seeing you on 27th April”).   This was lovely: it humanized the process and was much appreciated. But of course it in no way militates against the fundamental injustice that  – if I were P in this situation – I would feel was being perpetrated against me.  

Reflections

Like Mr B, I’m very concerned about the delay in this case. It seems that Mr B has not been allowed to exercise his right to “take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” (Article 5(4), Human Rights Act, my emphasis).

There’s been nothing “speedy” about it.  Mr B will have been deprived of his liberty for sixteen months since proceedings began – for five of those months (December 2020-April 2021) with an expert witness report stating that one of the requirements for authorising such a deprivation of liberty (lack of capacity) is not met.

The court has not been willing, at any point during the proceedings, to make a determination that the mental capacity qualifying requirement is met, nor to make a direction that Mr B lacks capacity.

I don’t understand why it took so long to get an expert report about capacity: the case was first heard in January 2020 and the expert witness did not meet with Mr B until early October 2020.  Obviously there was a pandemic, but many other capacity assessments were done during this period.

I am persuaded by Mr B’s counsel that the presumption in favour of capacity should mean – now that an expert capacity assessment reporting that Mr B has capacity is finally in hand –an end to the proceedings.  The counterarguments from the local authority did not seem to me very compelling ones and the way they were phrased often sounded as though they were at heart driven by concerns about Mr B’s vulnerability to exploitation in the community and a desire to ensure his welfare.  This is of course an understandable human impulse. But the drive to protect Mr B from the consequences of making what might turn out to be bad decisions is different from (and should not be confused with) the claim that Mr B lacks capacity to make those decisions.

I’m not entirely sure what will be gained by asking the expert witness further questions. The burden of proof is on those who claim that Mr B lacks capacity.  I await the next hearing with interest to see how this will work.

I am left dismayed that delays like this seem to be so common and so detrimental to P’s wellbeing.  We wrote about another case – concerning capacity for sexual relations rather than deprivation of liberty – in which it also took more than a year to establish that P had the requisite capacity (here) and I know about protracted delays in court decision-making in serious medical treatment cases (e.g. here).

From the point of view of an observer (without the bundle) it’s impossible to know why these delays occur, who is responsible for them, and what should or could have been done differently – but given the fundamental human rights at stake, delays should not keep happening without the organisations responsible being in some way held accountable and being enabled to improve their practice in future.

Postscript (added 18th May 2021)

This case did not return to court. The standard authorisation by which Mr B was deprived of his liberty was terminated on 26th April 2021, after the local authority withdrew its objections to the independent consultant psychiatrist’s evidence. This was 15 months after the first hearing (on 27 January 2020) at which oncerns were raised on behalf of Mr B that the evidence before the court in relation to his capacity was not sufficient to rebut the presumption of capacity on a final basis. I am grateful to Ashley Bradley of MJC law, one of the solicitors involved in the case, who provides a careful chronology and account of the cumulative effect of various delays, especially in the context of the pandemic (here). She says:

Perhaps a wider point for consideration is how the process of obtaining a capacity report under s49 of the Mental Capacity Act 2005 can be improved, especially when the need for speedy resolution is paramount. NHS trusts are under increasing pressure due to the sheer volume of s49 requests they receive on top of their everyday clinical work and the quality of reports that the court receives varies. In this case, the s49 assessor reached a conclusion that Mr B lacked capacity following one 30 minute visit that was terminated early by Mr B. They declined a second visit despite requests from Mr B’s representatives and in all, spent longer speaking with staff than actually assessing Mr B. In contrast, the independent consultant psychiatrist spent approximately 2 ½ hours with Mr B over 2 separate visits which helped Mr B’s engagement with the assessment.”

Please read her blog for more information.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCeli

Photo by NeONBRAND on Unsplash

3 thoughts on “Delay in a Section 21A Challenge to the Capacity Requirement

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