A while back I wrote a post about the low numbers of s21A appeals under the deprivation of liberty safeguards (DoLS). I noted that according to data the Court of Protection shared with me, 8 appeals were by litigants in person. I’m afraid I forget who it was, but someone suggested this might be because the Legal Services Commission were refusing some would-be claimants legal aid on a merits test, perhaps on the basis that their appeal against detention was unlikely to succeed. I looked into this further by writing to the LSC, who confirmed today that between April 2009 and December 2010 there were 67 requests for legal aid for s21A appeals, none of which were refused. So it seems the LSC, like the Court of Protection, take the view that all appeals against detention should be heard and treated seriously – and the court should never just ‘rubber stamp’ an authorisation under the DoLS. It is reassuring that people are not prevented from having the Court of Protection review their detention due to unavailability of public funding.
This does, however, beg the question as to why almost a third of all s21A appeals by December 2010 were litigants in person. It would be interesting to know whether these litigants were appointed as representatives of the detainee. In their first report into the DoLS the Mental Health Alliance had expressed concerns that some supervisory bodies were deliberately avoiding appointing people who opposed a detention as representatives, purely on the basis of their opposition. Thus it might be that some of these people have sought to oppose detention through the s21A appeal as a litigant in person. There are regulations on the appointment and selection of relevant person’s representatives under the DoLS, here. One other alternative explanation is that people are struggling to find legal representation due to a shortage of specialist solicitors, or a lack of awareness of how to find them.
It would be useful if the Ministry of Justice could collect data on who is making an application to the Court of Protection under s21A, and the outcome of that application (variation, termination or continuance of the authorisation).