It would be a topsy turvy world, wouldn't it, if public authorities could start appealing to the court against decisions they themselves had made? And yet, we should probably learn to expect anything with the deprivation of liberty safeguards (DoLS).
Following the ruling in London Borough of Hillingdon v Neary [2011] supervisory bodies are expected to 'enable' people detained under the deprivation of liberty safeguards to have the lawfulness of their detention reviewed speedily by a court [202]. As I have previously discussed, the effect of this ruling will be that an authorisation granted under Schedule A1 will not longer be regarded as sufficient authority to deprive someone of their liberty where the detainee themselves continues to object to their detention. The detainee must be supported to exercise their right of appeal, and in some circumstances it may be that the supervisory body themselves must therefore refer the matter to the Court of Protection. Indeed, this was the advice given by the Department of Health in July 2010, long before the Neary ruling. The principle that an incapacitated adult in detention should be supported to exercise their right of appeal is not novel in any case; in R(MH) v Secretary of State for Health [2005] the House of Lords found that:
...the argument is that a right "to take proceedings" is ineffective if the patient lacks the ability to do so. Given that the Convention is there to secure rights that are "practical and effective" rather than "theoretical and illusory" this is a powerful argument... it leads to the conclusion that every sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so. [23]
Furthermore, the court in Neary also made clear that the DoLS do not provide legal authority to interfere with a person's Article 8 rights if the supervisory body seeks to remove an incapacitated adult from the family home.
There might also be situations where a supervisory body finds themselves unable to vary or terminate the conditions of a standard authorisation they have issued, even if they wished to. This is because of the way Schedule A1 is structured. Once an application to detain has been made to the supervisory body, they must assess whether the 'qualifying requirements' are met. Under s50 of Schedule A1 the supervisory body must give an authorisation if all the assessments are positive. Some have taken this to mean that the supervisory body has an essentially passive role, simply 'rubber stamping' the independent assessments it has commissioned (see, for instance, the very illuminating comments from 'Anonymous' under my first post on the Neary case). Neary put paid to this idea:
The suggestion that the supervisory body is bound to act on any assessment that is not grossly and obviously defective sets the standard too low. It supposes an essentially passive supervisory body. This would not meet the objectives of the Act and would not provide effective protection against breaches of Article 5. [180]
But what is a supervisory body to do if the independent assessors find that the qualifying requirements are met, and they are bound to authorise, but there remains some doubt in their mind as to whether this is the correct way to proceed? Well, the supervisory body could initiate a review, but unless the situation has changed the assessors are likely to simply find the same way again. And the supervisory body cannot lean on the assessors to find differently - to vary the conditions, or find the detention fails to meet a qualifying requirement, as their independence is a vital safeguard. And so it seems to me that the only thing a worried supervisory body can do is refer the matter to the Court of Protection because Schedule A1 does not empower them to vary or terminate the authorisation in these circumstances.
So there a variety of circumstances when a supervisory body might seek to refer a detention that they themselves have authorised to the Court of Protection: where they are supporting an incapacitated adult to exercise their Article 5(4) rights; where the detention exceeds the authority vested in supervisory bodies by Schedule A1 (for instance, in situations of removal from the family home); where the supervisory body is concerned about the validity of the assessments or reviews, but has not choice but to issue a standard authorisation.
Which mechanism: s15 & s16, or s21A?
The question is: what mechanism should a supervisory body use to do this? There are two possible choices; the first is to seek a declaration from the Court as to the lawfulness of the detention under s15 Mental Capacity Act 2005 (MCA) and make an order under s16 MCA. The second - more controversial - option would be to use s21A MCA. Section 21A MCA is the vital safeguard that ensures that a detainee - or their representative - can '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)). Consequently it is commonly referred to as the 'appeal' mechanism, and yet the term 'appeal' does not appear in Schedule A1 itself (and the Code of Practice refers to 'appeals' only indirectly). Section 21A provides that where a person is subject to a standard or urgent authorisation under the DoLS, they may ask the Court of Protection to determine any question relating to:
(a) whether the relevant person meets one or more of the qualifying requirements;(b) the period during which the standard authorisation is to be in force;(c) the purpose for which the standard authorisation is given;(d) the conditions subject to which the standard authorisation is given.
The court may then make an order varying or terminating the standard authorisation, or directing the supervisory body to do so. There is nothing - that I can see - that would prohibit a supervisory body bringing proceedings under s21A, nor is it discussed in the DoLS Code of Practice, and yet - as a matter of logic - it does appear to be a mechanism inserted into the Act for use by the detainee, not the detaining authorities.
Availability of legal aid
This discussion might seem of the 'how many angels can dance on the head of a pin' variety, until one recognises that a case brought under s21A has one vital advantage over bringing the same issue before the court under s15/16: the availability of legal aid to the detainee and their relevant person's representative (RPR). When the DoLS were brought in new regulations were issued that created a non-means tested entitlement to legal aid for representation of detainees or their RPR's in s21A appeals. Equivalent regulations were not brought in for representation in matters relating to deprivation of liberty under other provisions of the MCA. Consequently if a supervisory body does refer a DoLS case to the Court of Protection under s15 and s16, the detainee and their RPR may not be entitled to non-means tested legal aid. Conversely, if the local authority referred under s21A, then they are automatically entitled to free legal representation.
I am reliably informed that situations have arisen where the Legal Services Commission have refused legal aid for s15/16 hearings concerning deprivation of liberty. I plan to put in a Freedom of Information request to the Legal Services Commission to see if I can get a picture of the scale of this issue (although, it seems entirely possible that the data is not recorded in such a way as to extract the Article 5 cases from the other s15 and s16 cases). It does seem to me that omission of legal aid in deprivation of liberty cases could present a serious problem for Convention compliance with Article 5 and Article 6, and be discriminatory in comparison with people for whom an application was made under s21A (or even, in comparison with people detained under the Mental Health Act 1983). But whatever the legality of the current situation, the fact is for practical reasons it may be advantageous for supervisory bodies to apply to the court under s21A rather than s15 or s16.
The position of the Court of Protection
The forms for applying under s21A are oriented towards use by the relevant person or their representative, but there is nothing preventing them being used by a supervisory body. Back in December 2010 the Court of Protection kindly shared with me some data on the number of cases relating to deprivation of liberty brought under s15 and s21A MCA. According to their data, 3 of the 30 s21A appeals had been brought by local authorities and 2 by NHS bodies. I contacted the court recently and asked them to confirm that they permitted appeals under s21A brought by the supervisory bodies themselves, they responded:
'...the court has and will continue to accept applications from local authorities under 21A. There are practical advantages for the court to using DoLS forms, as it makes it easy to recognise applications.'
And so even if one were to take the view that it is illogical for a supervisory body to appeal against an authorisation that they themselves have issued, the Court itself seems to take a practical view and permit the application. Yet another example of how the Court of Protection has taken a practical approach to create a useable framework out of the poorly drafted materials of Schedule A1.
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