If I was trying to get to the Court of Protection, I wouldn’t start from here

There’s an old Irish joke, where a person asks for directions to Tipperary and is told “If I wanted to get to Tipperary, I wouldn’t start from here”.

If I wanted to build a legal framework, which ensured that people who are deprived of their liberty in care homes and hospitals, who are likely to need a lot of assistance in exercising their Article 5(4) rights to appeal against their detention are able to do so, I would not start with the Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS).  Nevertheless, they are what we have, and they are what detained people, families, supervisory bodies, Independent Mental Capacity Advocates (IMCAs) and the courts have to work with.  Today, Baker J’s judgment in Re AJ provides a road map, if you like, on how cases should get to the Court of Protection under the DoLS, when a person who is deprived of their liberty is objecting to their detention.  It is one of the most important judgments for the DoLS to date, and may have a substantial impact on how supervisory bodies and IMCAs perform their role.

Like Cheshire West, Baker J’s judgment in Re AJ is firmly grounded in the universality of human rights.  He confirmed that the ‘everybody’ in Article 5(4) of the European Convention on Human Rights (ECHR) really does apply to everybody:

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.

It should not need judicial confirmation that the ‘everybody’ in the ECHR applies to people with disabilities, including those deemed ‘incapable’, but somewhere along the line the message of Article 5 seems to have got lost, and subsumed by the logics of the MCA.  Although it was never inserted into either statute, regulations or Code, somehow the MCA got ‘read into’ this fundamental human right, so that instead of saying everybody has a right of appeal, it came to be read as ‘everybody has a right to appeal if they have mental capacity, otherwise they only have a right of appeal if it’s in their best interests to do so (or their family objects)’.  This judgment puts an end to this, and explains how supervisory bodies, IMCAs and the Relevant Person’s Representative (RPR) should work together to help people who are detained under the DoLS to appeal.

The case has been highly influenced by a string of authorities under the European Convention on Human Rights (ECHR), cases which I’ve written about elsewhere and which are very succinctly summarised by Baker J at paragraph 35.  The judgment ties up a lot of loose ends and issues that began to be explored in LB Hillingdon v Neary, but which required a different set of facts to answer fully.  The Neary case addressed the question of what happens if a person and their family object to their detention, and that’s a very important issue – but as I wrote last week, I worry that this has sometimes been understood as being about the rights of family to object.  We needed a stronger statement that even if people’s family do support a person’s placement, if they themselves are objecting their right of appeal should be facilitated.  This case gives us that.

In AJ, the local authority was one which is ‘generally recognised as taking its responsibilities to elderly and vulnerable people extremely seriously’ (para 132), yet a violation of human rights was still found.  I would also say that this case shows that it is possible to more or less follow the letter of the law in relation to Schedule A1, the regulations and the Code, and still violate human rights.  And that is because the only way to comply with human rights obligations under the DoLS, is to read them in a particular light, and to keep on top of the ECHR authorities about legal capacity and deprivation of liberty.  In places, Baker J does some pretty remarkable legal gymnastics to read the Schedules and regulations compatibly with the ECHR (no doubt supported by Victoria Butler-Cole and Michael Dooley), which is all to the good.  But this is yet another case that demonstrates how the DOLS fail to comply with the most basic requirement of the rule of law – that it should be ‘formulated with sufficient precision to enable the citizen to regulate his conduct:’ (Sunday Times v UK, para 49).  Expecting front line staff to perform such legal gymnastics is a pretty tall order, and so whilst I have huge sympathy for AJ in this case, and I like Baker J’s judgment, I also think that that front line staff face real challenges in knowing when cases need to go to court, and how they should get there.  That’s presumably how we end up with incredibly low numbers of DoLS ‘appeals’ in the Court of Protection, and the string of dire case that I’ve talked about here before.  Hopefully, this judgment will clarify what needs to be done.

The headline

The headline sentence on this case is this:

“Article 5 (4) gives AJ an unqualified right of access to the court. There is no place in Article 5(4) for a best interests decision about the exercise of that right since that would potentially prevent the involvement of the court” [para 77]. 

This simple statement has significant consequences for the role of the RPR, IMCA and the supervisory body.  Whilst I know that some supervisory bodies and IMCAs do take Article 5(4) rights very seriously, and do help people to appeal even if they regard the appeal as futile or not in the person’s best interests, I suspect there are many which do not.  For example, if you read the oral evidence of advocacy providers to the House of Lords Select Committee on the MCA, they discuss several examples of situations where a person is confined to a place, presumably deprived of their liberty, and is objecting.  Instead of an unequivocal statement to the effect that they would assist the person in challenging, they made comments such as ‘the responsibility of the IMCA, while it is to make sure that the person has a voice through the process, is to challenge when the decision is not in the person’s best interest’ (emphasis added, see Q112).  Or another example, where a person wanted to live in a situation where they were abused, ‘I think you would have to represent what was best for that person in relation to safeguarding’ (Q112).  The ruling in AJ draws a very clear distinction between the role of IMCAs who are not acting under referrals connected with the DoLS, where the focus is on best interests, and those who are acting under DoLS, where the focus is on helping a person to understand and exercise their rights of challenge, even if the IMCA or others take the view that what the person is objecting to is in the person’s best interests.

The facts

AJ was an older woman who had been living with her niece and her niece’s husband (Mr and Mrs C), but they were struggling to provide care for her any more.  They told the local authority this, and it was agreed among them that AJ would move into respite care for a few weeks whilst they had a holiday.  However, Baker J found that it was apparent even at that point that the move was likely to be permanent, as Mr and Mrs C felt they could not care for AJ any longer, and it was known that AJ herself would strongly object to this move.  The judgment helpfully clarifies that even a temporary move into respite potentially engages Article 5, and spells out that this should be planned for in advance, rather than issuing an urgent authorisation further down the line.

Several standard authorisations were issued.  AJ had made Lasting Powers of Attorney (LPAs) appointing her niece and her niece’s husband (Mr and Mrs C) as donees, with authority to make both property and affairs and health and welfare decisions.  Now, the regulations for the appointment of the RPR say that when a person (like AJ) is felt to lack the mental capacity to choose their own RPR, the donee of an LPA (or a deputy) can make the choice.  There was some confusion in this case as to whether Mr and Mrs C had actually self-selected as RPRs (it appeared they hadn’t explicitly been told this was their choice) or whether the Best Interests Assessor (BIA) effectively chose them and they agreed to this.  Either way, the supervisory body appointed Mr C as the RPR, even though he raised at the outset that he felt he had a conflict of interest because he himself supported AJ’s placement in the care home and had helped to make that decision, and would have had difficulty in helping her to appeal.

The appointment of the RPR

One of the issues in the case was whether the supervisory body should have appointed Mr C as the RPR.  Now, I had read the regulations pretty much the same way that the local authority had – although I’d been worried about situations like this where the RPR would not help a person to appeal.  There is nothing in the schedules, the regulations or the Code which explicitly says that RPR’s must help a person to appeal if they object, or that if they do not do so, they should be replaced by somebody who does.  This is where the legal gymnastics comes in…

To recap, the RPR regulations say that if a person has a deputy or a donee of an LPA they ‘may select himself or herself to be the relevant person’s representative’.  However, the Best Interests Assessor (BIA) must confirm that they are ‘eligible’ for this role.  Regulations 3 and 9 set out various eligibility criteria for RPRs, and nothing there says that the RPR must be willing and able to help a person to challenge the detention if they wished to do so.  The closest statement to this effect in the DoLS scheme is in paragraph 140 of Schedule A1, which says that a person should not be selected as the RPR unless ‘it appears to the person making the selection’ that they would maintain contact with the relevant person, would ‘represent the relevant person in matters relating to or connected with this Schedule, and… support the relevant person in matters relating to or connected with this Schedule’.

The first issue that arose was who is responsible for the selection of the RPR in this case?  It appeared from the regulations that it was Mr and Mrs C themselves, since they were donees of the LPA.  But this leads to the very problem – that a donee or deputy may select an RPR who does not facilitate a person’s Article 5(4) rights, so Baker J had to read the regulations in such a way as to give a supervisory body residual discretion to refuse to recognise the selection or make this appointment.  He concluded that ‘the intention behind regulations 7 and 8 [which are about confirming the eligibility of the selected RPR] is to ensure that the BIA provides an independent check on the proposed RPR, including by ensuring that the provisions of paragraph 140 of the Schedule are satisfied’ (para 75).

In other words, Baker J read two further elements into this legal quagmire: firstly, that the ‘eligibility check’ on the RPR, performed by the BIA, includes checking that the RPR can perform the functions of paragraph 140 of Schedule A1; and secondly, that although paragraph 140 does not expressly say that part of representing and supporting a person in ‘matters relating to or connected with this Schedule’ is helping them to appeal whenever they want to, this is an implicit requirement because of the positive obligations that arise under Article 5(4).

In circumstances where the RPR may still have been selected and confirmed by the BIA, Baker J went on to say that the supervisory body itself should not appoint them as RPR unless these criteria were satisfied, and that if the RPR had already been appointed, their appointment should be terminated ‘when it became clear that he was not taking any or any sufficient steps to represent and support AJ in a key matter relating or connected to Schedule A1, namely a challenge to the authorisation granted under the Schedule’ (para 91).

Now, in terms of getting people’s challenges heard in the Court of Protection, I think this reading of the regulations and Schedules is a positive step.  Because there is no automatic referral to the Court of Protection, unlike under the Mental Health Act 1983, if a person’s RPR does not help them to appeal, the odds of the case getting to court are very low.  In fact, in our recent study we found only a handful (7) of cases where the RPR had made the application to the Court of Protection.  So there’s a huge problem here.  RPRs will usually be a person’s friends and family, and it would be inappropriate and unfair to place them under a legal duty to help a person to appeal, especially in circumstances like this where somebody like Mr and Mrs C really did care about AJ and could not reasonably be required to help her to appeal against something that they had helped to arrange.  So the only way around this, if the RPR is to be what instigates the appeal mechanism, is to make sure RPRs who are willing to help a person to appeal are appointed in their place.

The problem with this legal fix (without wishing to deny that it’s probably the best solution given the current legal framework) is that it places huge pressure on RPRs to help a person to appeal.  If we think about who is usually acting in this role – people who are experiencing quite stressful circumstances, who may themselves have disabilities or difficulties understanding this convoluted legal process, people who may well be scared of courts, or scared of rocking the boat – it seems quite unfair to place such expectations upon them.  Similar expectations are not, for example, placed upon the Nearest Relative under the Mental Health Act.  Although they have powers to object, to discharge people and refer cases to the Tribunal, they are certainly not expected to perform this wherever a person objects.  To the contrary – there’s a bigger risk that if nearest relatives do exercise these powers they might be displaced for acting unreasonably!  And it’s not such a problem under the Mental Health Act 1983 if relatives don’t help a person to challenge, partly because the appeal process is simply so much easier to initiate (ask a staff member to fax an application to the Tribunal) and also because even if a person and their relative does nothing, they’ll end up before the Tribunal after six months anyway because of the automatic referral (there is, however, a question about whether six months is too long – especially if a person is objecting much earlier on).

So it seems to me that DoLS place families under unfair pressures to be the lynchpin in facilitating Article 5(4) objections.  Moreover, families who do not help a person to challenge, and who are not selected or are displaced as RPR, may feel shut out of the process – they will lose rights to be kept informed and given copies of assessments, and if the case does end up in court they won’t have ‘gold plated’ legal aid.  So, whilst I think this judgment makes the best of a bad job, it’s still not a satisfactory appeal mechanism.

IMCA referrals when a person has a deputy or attorney

A nasty tangled issue arose in this case about referrals to IMCAs where a person has made an LPA or has a deputy, and wider issues arose about the role of IMCAs whilst instructed.

The supervisory body made a referral to an IMCA under s39D MCA, and Mr C (the RPR) was keen to speak to the IMCA.  By the time the case got to court, however, the local authority weren’t sure if they should have made this referral.  This is because of a bizarre provision in s40 MCA, which essentially says that the duty to make a referral to an IMCA doesn’t apply if the person has an attorney or deputy ‘who is authorised to make decisions in relation to those matters’ (even worse – this provision also kicks in if P has nominated a person “in whatever manner” as ‘a person to be consulted on matters to which that duty relates’).  This was presumably inserted because the point of IMCAs was to be somebody to be consulted about a person’s best interests when a person had no friends or family who were appropriate to consult (as per s4(7) MCA).  But the problem for the DoLS is that the role of an IMCA is less about ‘best interests’ and more about understanding and exercising rights, especially s39D IMCAs who have an express (and unqualified) statutory duty ‘to take such steps as are practicable to help P or R… to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right, or…to exercise the right of review, if it appears to the advocate that P or R wishes to exercise that right.’  Apparently nobody thought about this when the DoLS were being drafted or passed by Parliament – I have scoured Parliamentary debates and amendments and supporting documents and cannot find it discussed anywhere (quelle surprise!).

So, cue Baker J and more legal gymnastics to read this dodgy provision compatibly with Article 5(4).  This is really clever stuff.  Baker J observes that s40 only applies if a donee of an LPA or a deputy ‘is authorised to make decisions in relation to those matters’ (para 110).  Baker J says that the role of an IMCA under s39D is not ‘determining what would be in P’s best interests’, even if that might be the intention behind other kinds of IMCA.  The role of the s39D IMCA is to help P and the RPR understand the DoLS process and exercise their rights of appeal and review (para 111).  Thus s40 only kicks in if the LPA/deputyship empowers somebody to either help a person to understand the DoLS or exercise rights of appeal or review (para 112).

In this case, the LPAs appointing Mr and Mrs C were unrestricted and for both property and affairs and health and welfare – so you might think this was pretty comprehensive and covered pretty much anything.  But Baker J observed that neither made specific provision in relation to these s39D obligations to help a person understand the DoLS and exercise their rights (an aside: has anybody, ever made such a weird LPA?!!  Pro tip: don’t!) and (here’s the killer) ‘The exercise of those rights concerning the deprivation of liberty is not a decision relating to welfare’ (para 115).  So this solved the s40 conundrum – the IMCA referral duty still stands for DoLS unless a person has made a totally weird LPA specifically empowering somebody in connection with the duties of s39D IMCA (I think there are greater odds of my cat landing on the moon than somebody having made such an LPA).

This description of the IMCA role also has the interesting symbolic effect of clearly distinguishing between exercising rights connected with deprivation of liberty from welfare matters, reinforcing the headline in this case that best interests has no business in questions of rights of appeal against detention.

The role of IMCAs under DoLS

The next significant part of this judgment concerns the role of s39D IMCAs once they are appointed.  In this case, after the referral to an IMCA was made, it took them a very long time to get in touch with Mr C (a combination of being very busy, sick leave and annual leave).  The IMCA did, however, meet with AJ, who made her objections clear. The BIA records that the IMCA as saying that he was:

…was unsure if he would pursue an appeal for AJ at that time. When she asked about this uncertainty, he replied that it was not uncommon for many older people in care to state a desire to return home and that judgments about any appeal were difficult for IMCAs when it is apparent that they need residential care.

So this harks back to the comment I made at the outset – the lack of clarity about when IMCAs should be helping people to exercise rights of appeal.  The IMCA did later on say that they did not recall making this statement, but the fact still stands that they didn’t exactly get straight on the blower to a solicitor to mount an appeal (although, in fairness to the IMCA, they did do this eventually, which is how it ended up in court).

This situation may have been complicated by the fact that the IMCA referral was for Mr C, who did not want to exercise rights of appeal as he supported the placement.  This isn’t something that’s discussed in the judgment, but I’ve certainly chatted to IMCAs who describe feeling helpless when their referral is for the RPR, who doesn’t want to appeal, and P does.  Now, s39D(8) places s39D IMCAs under an express (and unqualified) statutory duty to ‘to take such steps as are practicable to help P or R… to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right’.  It seems to me that this places IMCAs under a duty to help the detainee to appeal, even if their referral is technically to support the RPR – this is because whatever the referral form says, the advocate has a statutory duty to represent the detainee and not the RPR (see s39D(2)), and because the s39D(8) duty to help a person to appeal applies if the P or RPR wishes to do so.

Problems arise, however, in connection with how you interpret a person’s wishes under s39D(8), where they may not be able to express a wish to go to court or they do not understand its role.  In this case AJ herself expressed the view that she did not want to go to court, she simply wanted Mr C to get her out of the care home.  She did not connect the court with getting out (and in fact, the Official Solicitor dropped the substantive appeal, which does raise meta questions about the role of ‘best interests’ representation given the ratio of  this case, but that’s an issue for another day).  Mr C ‘frankly acknowledged, however, that if he had asked her “do you want me to do what I can to get you home?” she would have answered yes, but he never phrased the question that way’ (para 71).  So it seems that both RPRs and IMCAs need to be more creative and expansive in their reading of situations when P wishes them to help them to appeal.  Essentially the question is: would the person want somebody to do whatever they could to get them out or challenge the detention?

For several months, the IMCA did not issue proceedings.  In evidence to the court, the IMCA said that he had been told that he could not act as a litigation friend for people, and had ‘no clarity as to how to take matters forward and IMCAs are often in a quandary about what to do in such circumstances’ (§120).  I think this is a fair comment – the Codes are pretty useless on advising IMCAs on precisely how to help a person to issue proceedings in the Court of Protection, and in our research we have found real variations in practice.  Useful guidance for IMCAs on acting as litigation friends will not surmount practical issues such as funding or organisational policies on IMCAs taking on this role (only a few years ago, it wasn’t even clear that they were legally permitted to do so!).

Baker J acknowledged that the IMCA was extremely busy and had a high case load (and no doubt IMCAs are presently in even more dire straights, following Cheshire West), as well as being off sick (para 120).    But whilst acknowledging these difficulties, Baker J found that ‘he should have acted more promptly in contacting Mr. C and taking steps to challenge the standard authorisation on AJ’s behalf. If his personal circumstances made that difficult, he should have arranged for the case to be allocated to another IMCA’ (para 121).  At the end of his judgment, Baker J had this ‘wider lesson’ for IMCAs:

‘an IMCA appointed under section 39 D must act with diligence and urgency to ensure that any challenge to an authorisation under schedule A 1 is brought before the court expeditiously. Failure to do so will lead to the evaporation of P’s Article 5 rights’ (para 138).

So, in summary, Baker J has drawn a sharp distinction in this case between the ‘ordinary’ IMCA role, when referrals are for accommodation, serious medical treatment, safeguarding or reviews, and the IMCA role under DoLS.  In the ordinary MCA referral situations, the IMCA role is about helping to identify the person’s best interests.  Under the DoLS, the IMCA role is about helping a person to understand and exercise their rights, whatever the IMCA’s personal view of the person’s best interests.  I feel that this latter role sits much more comfortably for me with the traditional role of advocates; I am very uncomfortable about ‘best interests’ advocacy.  Which is not to say that I don’t think non-instructed advocacy is important, but there are ways of construing non-instructed advocacy that do not end up in situations where a person’s rights of challenge are effectively suppressed by the advocate themselves, or where advocates could even push for outcomes which the person does not want.  I think the Care Act advocacy regulations, for example, take us much closer to that.

But I digress – the point is, IMCAs need to be aware that their role under DoLS is radically different to their role elsewhere – they need to leave best interests at the door and get to grips with helping people to understand and exercise their rights.

The responsibilities of the supervisory body to facilitate appeals

Baker J’s judgment is firmly oriented towards the positive obligations of supervisory bodies to uphold and facilitate people’s ECHR rights, and in particular their rights of appeal under Article 5(4).  At various points the supervisory body has obligations to ensure that these are upheld by third parties – for example by ensuring the RPR that is selected and appointed is willing and able to help P to appeal, to ensure that IMCAs are provided to help them to do so and are appropriately resourced to help a person to challenge in court.  To monitor the RPR and the IMCA in whether or not they are helping a person who objects to appeal.

In theory, provided all these steps are taken, the combination of the IMCA and the RPR should be enough to get a case to court if the person is objecting.  But it cannot be guaranteed that this will always happen, in which case, Baker J said:

As a last resort, the local authority should have considered bringing proceedings before the court itself. Plainly this is a last resort, because of the comprehensive and complex provisions for the selection and appointment of RPRs and the appointment of IMCAs are followed, and if RPRs and IMCAs appointed under these provisions carry out their responsibilities as they should, the rights of an incapacitated person to challenge a deprivation of liberty normally will be protected. But the local authority remained under a continuing and positive obligation to ensure that AJ’s Article 5(4) rights were respected. Thus, if it was not satisfied that the IMCA was taking the necessary steps to apply to the court, and if in all the circumstances it considered such a course to be appropriate, it should have brought court proceedings itself. In this case, however, it is likely that an inquiry of Mr. R by the local authority into the steps he was proposing to take would have clarified the position and led him to initiate proceedings at an earlier stage. (para 126)

Discussion

As I’ve stated earlier, I think this is a hugely significant decision.  It’s a very firm statement indeed that a person’s access to a court under Article 5(4) ECHR should not hinge on third parties’ views of their best interests or the strength or prospects of success of their case.  This is very firmly based on ECHR authorities such as Waite v UK and Stanev, which are about limiting third party discretion to block access (or refuse to facilitate access) to a court.  It is also a case which has clearly been influenced by MH v UK, which is about positive obligations to assist a person to issue an appeal if they are unable to do so themselves (ahem, apologies I can’t resist this: I told you so).  In MH v UK, MH’s mother did in the end help to get her case to court, but the European Court of Human Rights commented ‘The question might be asked whether such a hearing could have taken place had the applicant not had a relative willing and able, through solicitors, to bring her situation to the attention of the Secretary of State’ (§95).  This case, in effect, answers that question: where there is no relative who is willing and able to help a person to appeal, the state – through a network of ‘special procedural safeguards’ – must appoint a person who can perform this role, and as a last resort must refer the case to court themselves.  The case helps to clarify precisely the nature of the duty in Neary, to enable a person to exercise their rights of appeal.

I think the case also has a wider symbolic message – in clearly identifying the limits of the best interests principle in relation to access to a court to exercise rights of appeal.  My friend A talks about ‘capacity gone wild!’ – a sense that following the passage of the MCA, a mentality has taken hold that everything must hinge on a person’s mental capacity and best interests.  The most significant challenge to this logic is, of course, the UN Convention on the Rights of Persons with Disabilities (CRPD).  This judgment does not grapple with the CRPD, and yet in some senses it echoes the CRPD’s strong statement of equality – equality of access to a court, and the accommodations and support necessary to make that a reality.  It is a statement that a person’s own wishes and preferences should be determine rights of appeal, not the views of third parties of their best interests.  Of course, this judgment is very far from saying that best interests are not relevant to the substantive decision at stake here, it reinforces rights that are ultimately procedural.  But nevertheless, the statement that a person’s objections should be taken seriously, whatever the views of others as to their best interests, is an important one and may have significant consequences for the MCA, the DoLS and the Court of Protection itself in years to come.