A s.21A challenge for a ‘restricted’ patient: A “shocking” delay

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By Febienne Green (with Celia Kitzinger), 8th August 2023

On Wednesday, 5th July 2023, I watched a hearing (COP 13627234) before Mrs Justice Theis, Vice President of the Court of Protection, sitting at the Royal Courts of Justice via MS Teams.  

The case was a s.21A challenge to a standard authorisation depriving Mr N of his liberty in a care home.  He filed his application in October 2022, and the judge was very critical about the delay in this case and criticised the lack of “robust management”: “It’s shocking, frankly. Here we are 8 months later, effectively having the first hearing”.[1]

This is an unusual case because Mr N is a ‘restricted’ patient, conditionally discharged under section 37 and 41 of the Mental Health Act 1983.

Under the Mental Health Act 1983, the Crown Court may impose a hospital order together with a restriction order upon a ‘mentally disordered’ offender, if this is considered necessary to protect the public from serious harm.

This means that the patient is liable to indefinite detention in hospital for medical treatment and can only be discharged by the Secretary of State for Justice or the First-tier Tribunal. Such a discharge can be conditional, which means that the patient remains subject to recall to hospital, as well as to whatever conditions are imposed by the Secretary of State or the First-tier Tribunal.

In the case of Mr N, his warrant of conditional discharge requires Mr N to reside only at X Care Home and not to move residence “without the agreement of the community team who must notify the MoJ [Ministry of Justice] at least 14 days in advance of such a move”. 

It is settled law that the Mental Health Act 1983 does not permit either the First-tier Tribunal or Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient if that patient has capacity to make their own decisions about residence and care (Secretary of State for Justice v MM [2018] UKSC 60 [38]). However, when someone is said to lack the requisite capacity, they may be given a conditional discharge to a place of residence where the circumstances amount to a ‘deprivation of liberty’ if (but only if) that deprivation of liberty is authorised under the Mental Capacity Act 2005.  That’s how it’s come about that Mr N lives at his current care home. 

Mr N’s deprivation of liberty is therefore authorised under the Mental Capacity Act 2005, and it is that standard authorisation that he now seeks to challenge. 

This was a complicated and unusual case for my first hearing! Luckily, Celia Kitzinger also watched this hearing and was able to support my understanding and reporting of this case.  She also benefitted from receiving both the Position Statement from the Official Solicitor and the Transparency Order.

My interest in observing a hearing 

I studied law and completed the Bar Training Course with an ambition to practice in clinical negligence after witnessing the effects of a brain injury on my younger sister and the clinical negligence case that ensued. During university I studied healthcare law, mental health law and disability law. It was the study of disability law that introduced me to the Court of Protection. I was fascinated by the importance of the issues dealt with and the profound effect these decisions have on an individual (some of whom are the most vulnerable people in society), their family and society, all set within a legal process.

Access to the hearing 

I first became aware of this hearing when Celia Kitzinger of the Open Justice Court of Protection Project emailed the details of this hearing to me and recommended I observe it.  

In my search for access to the hearing, I began by emailing the Royal Courts of Justice (RCJ) at 8:19am. When I did not receive a response, I sent another email labelled ‘URGENT’ at 9:58, whilst simultaneously telephoning the number provided for enquiries relating to hearings at the Royal Courts of Justice. However neither my email, nor my phone call, was answered.  

I emailed Celia Kitzinger regarding my struggle to gain access to the hearing. She forwarded it to a number of people to assist in my search for the link. I was subsequently sent the hearing link and advised that the hearing was likely to start late. 

Following this, the Open Justice Court of Protection twitter feed then sent a public tweet, tagging in His Majesty’s Courts and Tribunal Service (@HMCTSgovuk), asking why the RCJ email addresses for links were not responding and why the phone was going unanswered.  I also understand she emailed people (whose emails are not publicly available) to explain that we were not able to gain access. 

I joined the hearing remotely at 10:30am and the MS Teams Meeting began at 10:50am (twenty minutes later than listed). 

At the beginning of the hearing the judge apologised for the late start, which was due to “technical difficulties” with a previous hearing. She acknowledged that there had been some “difficulties” in public access to the hearing – but on checking who had joined the platform she noted that those difficulties “have been overcome in part by the delay in starting this hearing”.  

Transparency Order

I was not sent the Transparency Order, In court, however, the judge stated (only) that the name or identity of P whether directly or indirectly was not to be published and that the Transparency Order could be requested from the court, which I intended to do. However, Celia Kitzinger sent me the Transparency Order (TO), on the 7thJuly 2023, telling me that she had made an application for it to be varied so as to permit naming the local authority (Kent County Council) – and this variation was approved by order of Poole J on 11th July 2023.  Neither Celia nor I had been made aware during the hearing that the original TO  protected the identity of Kent County Council. This highlights the importance of requesting the TO as soon as possible, either before, during or immediately after the hearing and before communicating anything about the case to others. (Celia has blogged about the issue of the transparency order here: “Varying reporting restrictions to name Kent County Council in ‘shocking’ delay case“.)

The hearing 

As set out in Transparency Order, the barristers in court were: 

  • Bridget Dolan KC for the applicant, Mr N, via his litigation friend the Official Solicitor 
  • Michael Paget for the first respondent, the local authority, Kent County Council  
  • Steven Broach for the second respondent, NHS Kent and Medway Integrated Care Board 

Mr N himself appeared remotely and was accompanied by someone in the care home. The Official Solicitor asked the judge for permission to allow Mr N to turn his camera off, which he did immediately after being granted permission.

After the usual preamble (about not recording the hearing), the hearing was called on by a member of the court staff, and the judge then asked counsel for the applicant for an introductory summary of the case, as recommended by the former Vice President, Mr Justice Hayden (here).  

Bridget Dolan KC introduced all the people in the virtual courtroom and explained that this is a challenge by Mr N to the local authority’s deprivation of his liberty, on the grounds that it does not meet the qualifying requirements of s.21A(2) of the Mental Capacity Act 2005.   

There are six qualifying requirements before someone can be lawfully subject to a Standard Authorisation depriving them of their liberty in a hospital or a care home.

  1. The Age Requirement: that the relevant person is 18 or above 
  2. The Mental Health Requirement: that the person must be diagnosed with a ‘mental disorder’ within the meaning set out within the Mental Health Act 1983, as amended by the Mental Health Act 2007
  3. The Mental Capacity Requirement: whether the person lacks capacity to decide for themselves whether or not they should be accommodated in the care home or hospital in question for the purpose of being given the care or treatment specified 
  4. The Best Interests Requirement (includes 4 conditions): 
    1.  that the person is or will be detained in the care home;
    1.  it is in their best interests to be detained in the hospital or care home;
    1. that this detention is necessary to prevent harm to them; and
    1. that this detention is proportionate to the likelihood of serious harm.
  5. The eligibility requirement: where none of the circumstances apply where it would not be lawful to authorise a deprivation of liberty, as set out in schedule 1A of the Mental Capacity Act 2005. Therefore, relating to cases where the Mental Health Act 1983 applies instead
  6. The ‘no refusal’ requirement – requires there to be no Lasting Power of Attorney, Deputyship, or valid and applicable Advance Decision to Refuse Treatment 

There are two qualifying requirements which Mr N is basing his challenge on.  First, he states that he does have capacity to make his own decisions about residence and care, and therefore cannot be subject to a deprivation of liberty under the Mental Capacity Act 2005. Alternatively, if the judge finds against him on the capacity argument, he argues that it is not in his best interest to be in this particular care home, as it is not near his family. 

There was no mention during the course of the hearing about his “impairment of or … disturbance in the functioning of, the mind or brain” (s.2(1) Mental Capacity Act 2005), but I learnt from Celia Kitzinger afterwards, who had been sent the Position Statement from the Official Solicitor, that he has a diagnosis of treatment-resistant schizoaffective disorder and is living in a care home following discharge from hospital – where he is reported to have been an inpatient since February 2012. 

The case was before a Tier 3 judge in the RCJ for two reasons:

  1.  A s.49 report on Mr N’s capacity had concluded that he does have capacity to conduct this litigation and does have capacity to make decisions about residence – but that he does not have capacity to make decisions about the care he should receive. 
  2. Until the day of this hearing, the local authority had taken the position that the Court of Protection doesn’t have jurisdiction to hear this particular s.21A challenge because “section 21A cannot be used to discharge a DOL authorisation for a restricted patient”.  The local authority said that this application should have been made instead to a Mental Health Tribunal.   

The Official Solicitor’s Position

The Official Solicitor’s (OS) position was that “KCC [Kent County Council’s] position on jurisdiction is quite simply untenable, with no basis in law.  If [Mr N] is found by this court to have the requisite mental capacity that would make him ineligible to be deprived of his liberty under Schedule A1 then, clearly, the standard authorisation of his deprivation of liberty must be discharged.  To suggest as KCC do, that Mr N should be denied the opportunity in the Court of Protection to challenge the qualifying requirements for an authorisation of a deprivation of liberty imposed under the Mental Capacity Act is to trammel his fundamental Art 5 and Art 6 rights.” (From the OS Position Statement). 

By the time of the hearing, however, KCC had withdrawn from that position. 

According to counsel for the OS: “At the pre-hearing Round Table Meeting, we put to KCC that we considered it misplaced. It has now been withdrawn.  KCC accepts that the court does have jurisdiction… The issue of the jurisdiction of the court has now fallen away completely. You can decide whether he has capacity, and whether the placement he is in is in his best interests.  But you can’t order he goes somewhere else. Mr Paget will explain the residual issue – that COP has the jurisdiction to hear s21A but cannot demand that Mr N goes to a separate placement.” 

There had also been a further development – a new placement had been found, closer to Mr N’s family, and he wants to go there – on the grounds that if he’s going to be deprived of his liberty, he’d rather be closer to his family.  There are no lesser restrictions at the new placement.  The Secretary of State was content for the move to take place.  All that was holding it up was the funding decision – which is nothing to do (it turned out) with the ICB the court had joined as a party, who would not be the funder.  The only contribution to the hearing made by counsel for the ICB was to say “We don’t commission the services in this case. We have no involvement in this case. We don’t understand why we were joined, frankly.  If there are issues about funding, then it’s NHS England, or the Trust, but it’s certainly not us, and I’m not able to provide any assistance”.  

The judge seemed quite exasperated by this situation. She asked what directions were now being sought.  Counsel for the Official Solicitor said that they wanted an independent expert since the situation of whether or not Mr N has capacity is now complicated and contested. 

Judge:  How long will that take?

OS: We don’t have an expert…. The effect of KCC’s application to dismiss proceedings was that everything was put on hold.  If the court wasn’t going to hear it, there wouldn’t have been a need for a report. 

Judge: I don’t accept that.  It is acknowledged by everyone that you need to do parallel planning so you don’t build in delay.  I would expect to have enquiries made so that somebody was lined up to report so that there would not be delay if what has happened, happened.  All I can do is express my despair.  There’s delay building on delay.  How long do you think it will take. 

OS: We did have an expert who said, yes, he would do it. But now he’s on leave until September.  He had been lined up to do it, but now he’s not available.  Given that August is coming soon, I would not be hopeful for a report before the end of September.  I would like to be optimistic, but we know the reality. 

Judge: Okay, so expert report. What other directions? 

OS: Discharge the ICB. Get the capacity evidence.  Get Mr N’s wishes and feelings regarding the placements. 

There was some discussion about the timetable of events, with the conclusion from the OS being that the case was likely to be ready for a next hearing in September. 

Local Authority 

Counsel for the local authority said there was no dispute about funding and it was anticipated that Mr N could move to the new care home within two months. 

“The community team has notified the MoJ and the MoJ has consented to it. And as part of that wants comfort that any similar home would have a similar level of restrictions – namely, amounting to a deprivation of liberty under the Mental Capacity Act.  So, although they can’t impose a deprivation of liberty on a restricted patient, they say they’ll only approve a move where that is so – which amounts to the same thing.  This case was transferred to Tier 3 because of the case law on capacity and secondly to consider what the court can do in relation to s.21A when dealing with a restricted patient.  The court can say whether the capacity and best interests criteria are satisfied, but can’t say the patient should be transferred unless it’s already been agreed by the Secretary of State.  We did say as a bald position in our Position Statement and in correspondence that the court has no jurisdiction.  That is wrong. The court does have jurisdiction.  The court can say whether the capacity and best interests requirements are made out. But what it can’t do is say that a Mr N should be moved from Accommodation A to Accommodation B.” (Counsel for the local authority)

There followed some discussion about the precise remit of the judge and the Secretary of State.  “You can’t require the Secretary of State or anybody to provide a placement they’re not prepared to provide”, said the OS.  “You could say ‘I don’t think the best interests requirement is met because this man doesn’t need 24/7 care – so then the Secretary of State would probably recall him to hospital and then discharge him back to the same care home under s.17, so the conditional discharge would disappear. That would be the practical fix”. 

Counsel for the local authority said, “You can’t give the remedy sought in the s.21A challenge – ‘I don’t like it here and I want to live in [Name of Town] independently’”. 

Counsel for the Official Solicitor looked surprised by this comment.  “That’s just what Mr N’s wishes and feelings are”, she said.  “But our application was not for that.  I’m beginning to understand how this application has gone so horribly awry.  There seems to be a misunderstanding that paragraph 35, which sets out what Mr N’s wishes and feelings are, was somehow an application from us that Mr N should live independently!”. 

The judge said she would keep this case “so I can understand how this delay has come about.  It is not a good reflection on the system that a challenge was made in November 2022, and here we are in July 2023 without a determination and with a three-month delay.  It looks as though it won’t cause too much difficulty on the ground. There is no funding dispute and he can move in early September. He can achieve what he wants to – move closer to his family.  And I’ll have time to read the bundle and understand how this has all come about.”

The judge went through the order, decided on a directions hearing two weeks before the final hearing, and ended by reflecting on the fact that there had been an application, which she’d refused, to vacate this hearing.  “There is a lesson to be learnt about vacating hearings in such a vague and incoherent way.  My instincts were right about not vacating this hearing.” 

Reflections 

I found this hearing an eye-opening experience to the practicalities of Court of Protection cases, including the real-life implications of court delays, the need to provide introductory summaries and the positions regarding jurisdiction. Watching this hearing has strengthened my interest in Court of Protection work. 

Notably, I found it interesting that although the case was brought on behalf of Mr N, the focus was so far removed from him, as the entire hearing was concentrated on the jurisdictional disputes between counsel.  I’m told this was a very unusual hearing! 

Febienne Green is currently working as a paralegal. She completed the Bar Training Course with a masters in 2022. Her masters focused on disability discrimination in medical law, regarding s.1(1)(d) of the Abortion Act 1967 and its effect on persons with disabilities, with a focus on Down’s Syndrome and the case of R (Crowter & Ors) v Secretary of State for Health and Social Care [2021] EWHC 2536. Her ambition is to become a practising barrister. Her LinkedIn page is available here and her email address is febiennea1999@gmail.com.

[1] Quotations purporting to be taken directly from the hearing are based on Celia Kitzinger’s contemporaneous touch-typed notes. They are as accurate as they can be (given that we are not allowed to audio-record hearings) but are unlikely to be 100% verbatim.