Another case of s.21A delay (with a happy ending)

By John Harper, 27 October 2023

On Thursday 19 October 2023, I observed a remote hearing (COP 13627234) before Theis J, Vice President of the Court of Protection, sitting at the Royal Courts of Justice. An earlier hearing in the case was blogged here: “A s.21A challenge for a restricted patient: A ‘shocking’ delay”.  

The case concerned a challenge by Mr N to the Local Authority’s deprivation of his liberty on the grounds that it did not meet two qualifying requirements of s.21A(2) of the Mental Capacity Act 2005, namely (1) the mental capacity requirement and (2) the best interests requirement (see Sch. A1(3) para. 12(1)). 

Mr N has a diagnosis of treatment-resistant schizoaffective disorder and has been living in a care home following discharge from hospital. He is also a restricted patient under ss.37 and 41 of the Mental Health Act 1983.

Procedural history

The s.21A application was made in October 2022 but was not heard until 5 July 2023 (and even then, a determination was still not reached). At the July hearing, Theis J made her dissatisfaction known: “It’s shocking, frankly. Here we are 8 months later, effectively having the first hearing” and, “all I can do is express my despair. There’s delay building on delay” (quoted from the earlier blog). 

One reason for the delay was that Kent County Council was originally of the position that the Court of Protection did not have the jurisdiction to discharge a DOL authorisation for a restricted patient under s.21A, and instead such an application ought to have been made to a Mental Health Tribunal. However, this position was withdrawn following a roundtable meeting immediately prior to the 5 July 2023 hearing.

At the July hearing, an order was made directing that expert evidence on Mr N’s capacity was to be obtained, as well as Mr N’s wishes and feelings regarding the placement, and it provided for a further directions hearing (the one I observed) to be listed before the final hearing.

The hearing on 19 October 2023

This brings us to the hearing I observed. In relation to ease of access, it ran fairly smoothly on this occasion. I emailed both rcj.familyhighcourt@justice.gov.uk and rcj.familylisting@justice.gov.uk at 10.15 and received a reply about 30 minutes later attaching the link for the hearing which was listed for 2pm. 

The only hitch was that a Transparency Order was not sent to me. I requested this in another email to the rcj.familylisting address, but there was no reply (and I understand from the Open Justice Court of Protection Project that it is vanishingly rare for a Transparency Order to be obtained from that source: if it is sent – and it isn’t always – it is usually sent by one of the advocates). It was important I received the Transparency Order because the July hearing had given rise to some discussion regarding the naming of Kent County Council (see “Varying reporting restrictions to name Kent County Council in “shocking” delay case”).  Upon reading the blog, I was reassured that Kent County Council could be named, but I would of course liked to have seen the Transparency Order myself to confirm this. 

Although the hearing I observed was a case management hearing, it led to the proceedings being concluded because the two qualifying requirements in contention had been resolved. 

First, the expert’s opinion (accepted by all parties and by the court) was that Mr N does not have the requisite capacity in relation to deciding where he should reside. Second, shortly after the 5 July 2023 hearing Mr N had moved residence, and it was agreed between the parties that his new placement meets the best interests criteria. Mr N is settled and content in his new residence as shown by him engaging well with activities and seeing his mother more frequently. It was also agreed that the restrictions on his liberty were necessary and proportionate. If he were free to go out into the community on his own, he would be very vulnerable because of his poor road sense, his behaviour towards others, and the risk of exploitation. The new care home has available the required support to keep him safe.  

The Official Solicitor’s position was therefore that Mr N should continue to be deprived of his liberty at his current residence, subject to review in the usual course of events (due in April 2024).  As such, the Official Solicitor was content for the application made in October 2022 to be dismissed and for the final hearing to be vacated, bringing these proceedings to an end.

Mr N attended the hearing with a support worker, and Mr Storey called for a slight pause during his own submissions when Mr N got up and briefly went out of frame. Upon his return, the support worker said they were just “adjusting themselves”. Mr N being accommodated in this way gave the positive impression that his attendance in the proceedings was valued. Also noteworthy was Mr N’s reaction to Theis J’s summing up of him being content in his new residence, to which he held up his hand signalling “ok” to confirm that the new residence was an improvement for him. This was nice to see and served as a reminder that, as always in COP proceedings, there is an individual at the core of proceedings who is affected by the decisions of the court.

The question of delay

Despite the good news regarding Mr N’s change of residence, Theis J was focused on trying to figure out what caused the delay in getting the application heard.  As requested at the previous hearing, an agreed chronology of events had been sent to the court. 

Counsel for the Official Solicitor (Mr Scott Storey) and counsel for the Local Authority (Ms Alison Harvey) both gave submissions on this. 

It was put forward by Mr Storey that “in a nut shell, a number of factors culminated to cause the unsatisfactory delay in this case,  but the jurisdictional was significant”.  The OS’s position statement (sent to Celia Kitzinger, but not to me), reads as follows:

• “The Official Solicitor acknowledges that there appear to have been various overlapping factors which culminated to cause delay in progressing Mr N’s section 21A application, which all involved in these proceedings can take stock of. That said, the Official Solicitor submits that an unnecessary hurdle (which otherwise may have progressed the proceedings more promptly) was KCC’s jurisdictional challenge. This was misguided (for the reasons advanced in the Official Solicitor’s position statement dated 4 July 2023 [A7-13]) and was effectively abandoned by KCC at the hearing on 5 July 2023 [D74]. This was not a discrete legal point but a jurisdictional challenge (as reflected in KCC’s position statement dated 21 March 2023 [A1- 4]) therefore, in essence, a challenge to whether the court could hear, and thereby exercise powers within, the proceedings at all. Further, it engaged the interface between the 2005 Act and the 1983 Act, the complexity of which Charles J commented upon in Secretary of State for Justice v KC & Anor [2015] UKUT 376 (AAC) at [9]: “[i]n particular in respect of a deprivation of liberty, the relationship between the MHA and the MCA is not straightforward”. This required the Official Solicitor to obtain full advice; for Mr N’s solicitors to apply for Legal Aid funding for junior and leading counsel; and for the Official Solicitor to carefully consider her position, given the effect of KCC’s application was a challenge to Mr N’s fundamental right to have the lawfulness of his detention speedily reviewed pursuant to Article 5(4) of the European Convention on Human Rights (‘ECHR’), as incorporated into domestic law by section 21A of the 2005 Act.”

The Official Solicitor’s view was that where a party seeks to challenge the court’s jurisdiction to hear a s.21A application (which engages P’s fundamental right to have the lawfulness of his detention speedily reviewed pursuant to Article 5(4) of the European Convention on Human Rights (‘ECHR’)), that party should file a COP9 application clearly setting this out in accordance with Practice Direction 13A at the earliest opportunity.

By way of reply, Ms Harvey explained that the Local Authority has acted on advice throughout the proceedings and had sought a Roundtable Meeting with the Official Solicitor to discuss the jurisdictional issue. Ms Harvey conceded that there had not been parallel planning, such as resolving of the question of capacity while the jurisdictional issue was ongoing. 

It also became clear that the delay in listing the hearing was caused by counsel unavailability, albeit possibly via the court erroneously asking for such availability. What ensued thereafter was (said Theis J) “a merry-go round of correspondence … which built in yet further delay so that, when a date was offered, somebody said they could not do it and then there was more correspondence regarding availability. So, the hearing intended to take place soon after the order of Her Honour Judge Cophey on 22^nd March 2023 did not get listed until 5^thJuly 2023“.

Theis J firmly reminded the parties’ representatives that, “it is not, save in exceptional circumstances, for court orders to be disregarded in this way. The directions are for the first date of court availability and are not subject to counsel availability. Please could this be fed back to your legal teams – to list the matter is to list the matter as to when the court is available, not for when counsel is free.” 

Theis J, in bringing the hearing to a close, said “where there is a court order listing a hearing on the first available date for a Tier 3 Judge, that is what it means, and it is not subject to anybody’s availability unless that is specifically provided for in the order. The legal representatives in particular should have reminded the court of that. Then there would have been a much earlier hearing date. … It is regrettable that the delay is there. Fortunately, in this case, I don’t think it has been too detrimental for Mr N other than having the uncertainty about the ongoing proceedings.”

Reflections

I was surprised that the court remained determined to figure out the reasons for the delay in getting the application heard despite there being a positive development since the last hearing, such that the case could now be concluded. 

My immediate reflection on the exploration and complaints made by Theis J was that they were to remind those in court, and to signal more widely, that matters in the Court of Protection must be dealt with expeditiously because they relate to such serious issues like deprivation of liberty. Theis J’s comments seemed not just to be the venting of judicial frustration but came from a sincere concern for the detrimental effect delays could have on a protected party (P). 

It is clear from other blog posts published by the Open Justice Court of Protection Project that there has been judicial dissatisfaction over delay in other s.21A cases too.  

A post called “Justice delayed” documents delays in obtaining an appropriately qualified psychiatrist to assess P’s capacity, and further delay caused by adjournments in order to allow the Local Authority more time for a possible placement for P to be identified. The judge, in expressing their frustration, recognised that P “must be wondering whether the court cares”. 

A post called “Delay in a s.21A challenge to the capacity requirement” describes a substantial delay in collecting evidence on P’s capacity and, in that case, it was brought to the court’s attention that the delay had been harmful to P. An outcome in which he merely continued to be detained while waiting for another hearing would cause “great distress” to P. In response, the judge requested best interests to be considered in parallel with dealing with the question of capacity.  

As the former Vice President of the Court of Protection has repeatedly stated and in many contexts (including but not limited to medical contexts) “delay will invariably be inimical to P’s welfare” (e.g. here).

Furthermore, in the case of s.21A challenges in particular, these delays prevent P from exercising their right under Article 5(4) of the Human Rights Act 1998 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.”

It has been an interesting learning point for me to observe Theis J take time to analyse the causes of the delay and make her concerns known in the hearing, and also to learn of similar previous instances of judicial complaint in the face of unreasonable delay alongside the legislative provisions which expressly stipulate against it. It is good that judges are giving short shrift to unreasonable delays due to inefficient management of cases and going to some lengths to express why it is not acceptable. However, one cannot help but feel discouraged when similar cases keep coming along with substantial delay, requiring judges to express their concern over and over again. It gives the impression that the Local Authorities and other parties are not taking heed of such judicial comments, or – if they are – that there are apparently insuperable practical barriers in the way of implementing judicial advice, meaning they are ultimately in vain. 

What this ultimately means is that there will be case after case in which protected parties will once again be left wondering whether the court cares.

John Harper is an Advocate at DAC Beachcroft and an aspiring barrister. He is interested in Court of Protection and hopes to build a practice in this area when at the Bar.