Re AJ (DOLS)  EWCOP 5,  MHLO 11
"This case raises a number of issues about the provisions of the Mental Capacity Act 2005, and in particular the amendments that were introduced into that Act by the Mental Health Act 2007 concerning the procedures to be followed in cases of deprivation of liberty. The provisions under consideration include the selection and appointment of relevant person's representatives under Part 10 of Schedule A1 and independent mental capacity advocates under s.39D which have not, so far as I am aware, been considered in any previous judgment. More fundamentally, the case addresses the question of the extent of the duty on a local authority to ensure that a person who lacks capacity is able to challenge a deprivation of their liberty."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Incapable person — Deprivation of liberty — Unauthorised placement in residential home — Local authority failing to comply with deprivation of liberty safeguards — Whether local authority acting unlawfully — Human Rights Act 1998, s 7, Sch 1, Pt I, arts 5, 8 — Mental Capacity Act 2005 (as amended by Mental Health Act 2007, ss 50, 56, Sch 9 para 6), s 39D, Sch A1, para 140 — Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) Regulations 2008 (SI No 2008/1315), reg 3
In re AJ (Deprivation Of Liberty: Safeguards)
! ;  WLR (D) 64
Ct of Protection: Baker J: 10 February 2015
In situations involving a deprivation of liberty local authorities and professionals needed to be alert to cases where vulnerable people were admitted to residential care, ostensibly for respite care, when the underlying plan was for a permanent placement without proper consideration of their rights under article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Baker J, sitting in the Court of Protection, so stated when allowing the claim brought on behalf of the incapacitated person, AJ, by her litigation friend the Official Solicitor, for declarations and damages under section 7 of the Human Rights Act 1998 in respect of the alleged unlawful violation of her rights under articles 5 and 8 of the Convention. The court granted a declaration that the defendant local authority (1) had unlawfully deprived AJ of her liberty and thereby infringed her rights under article 5(1) by placing her in a residential home in circumstances which amounted to a deprivation of liberty without first either (i) granting any authorisation for such deprivation, pursuant to Schedule A1 to the Mental Capacity Act 2005, or (ii) obtaining an order of the court authorising such deprivation; (2) had, knowing at all material times that she did not wish to reside in a residential home, infringed her rights under article 5.4 by (a) wrongly appointing the relevant person's representative when it knew or ought to have known that he would not represent or support her in challenging the standard authorisations granted by the local authority under Schedule A1, (b) failing to terminate his appointment when he failed to take any or adequate steps on her behalf to challenge the said authorisation and (c) failing to take adequate steps to ensure that her challenge to the deprivation of her liberty was brought before the court expeditiously.
BAKER J said that AJ, aged 88, had moved to live with her niece and her husband (“Mr and Mrs C") to whom she had given lasting powers of attorney in respect of both welfare and financial affairs. On 13 June 2013 AJ had been placed in a residential home, X House, while Mr and Mrs C went on holiday. On arrival AJ had stated that she did not wish to be there and repeatedly asked to leave. No assessment under the deprivation of liberty safeguards (“DOLS”) under Schedule A1 to the Mental Capacity Act 2005 had been carried out prior to her arrival but an urgent authorisation under the Schedule was granted by the residential home manager and a request made to the local authority, as the supervisory body, for a standard authorisation. In her first best interests assessment the social worker concluded that, whilst AJ was not at that stage being deprived of her liberty because her stay at X House had been arranged for “respite”, a deprivation of liberty was going to arise if, as anticipated, AJ did not return home when Mr and Mrs C returned from holiday. Following her recommendation the local authority granted a standard authorisation under Schedule A1 for a month. In due course AJ was moved to another residential home, Y House; Mr C was appointed as AJ’s relevant person’s representative (“RPR”); an independent mental capacity advocate (“IMCA”), Mr R, was appointed; and a third authorisation was granted for a period of six months. Despite AJ’s known opposition to living at Y House, no legal challenge was made to the standard authorisations for several months. The consequence of the local authority’s failure to initiate the authorisation process prior to 13 June was that there had been no proper analysis of alternative options for AJ’s care, nor was she afforded any opportunity to have her views considered before the move to X House occurred. The consequence was that she, an incapacitated adult, was thereby deprived of her liberty.
The evidence manifestly demonstrated that Mr C was unwilling to represent or support AJ in challenging the authorisation because he and his wife had concluded that they could no longer safely look after her at home and he believed that it was in her best interests to live in residential care. He should not have been selected or appointed as RPR; and his appointment should have been terminated when it became clear that he was not taking steps to represent and support AJ in a challenge to the authorisation granted under Schedule A1. The appointment of Mr R as IMCA did not absolve the local authority from its continuing obligation to ensure that AJ’s rights under article 5.4 were respected. Since the local authority knew at all times that AJ did not wish to be in residential care, in addition to monitoring the actions of Mr C as RPR and taking steps to replace him if appropriate, it should have made inquiries as to why the IMCA was not taking steps to ensure that the right to apply to the court was being exercised. As a last resort, the local authority should have considered bringing proceedings before the court itself. Overall, the steps taken by the local authority to ensure that AJ’s challenge to the deprivation of her liberty was brought before the court were inadequate.
In re X (Court of Protection Guidance: Deprivation of Liberty Cases)! made it clear that it was a fundamental principle, recognised by the European Court of Human Rights in Winterwerp v The Netherlands (1979) 2 EHRR 387, that AJ should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. There were a number of wider lessons here: (1) The scheme of the DOLS was that, in the vast majority of cases, it should be possible to plan in advance so that a standard authorisation could be obtained before the deprivation of liberty began. It was only in exceptional cases where the need for the deprivation of liberty was so urgent that it was in the best interests of the person for it to begin while the application was being considered. (2) Professionals needed to be on their guard to look out for cases where vulnerable people were admitted to residential care ostensibly for respite when the underlying plan was for a permanent placement without proper consideration as to their article 5 rights. (3) A RPR should only be selected or confirmed where he or she satisfied not only the criteria in regulation 3 of the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008 but also the requirements of paragraph 140 of Schedule A1 to the MCA 2005. That required the best interests assessor not only to check that the facts set out in regulation 3 were satisfied but also to carry out an analysis and reach a judgment as to whether the prospective representative would, if appointed (a) maintain contact with the relevant person, (b) represent the relevant person in matters relating to or connected with Schedule A1 and (c) support the relevant person in matters relating to or connected with the Schedule. (4) The local authority was under an obligation to satisfy itself that a person selected for appointment as RPR met the criteria in regulation 3 of the 2008 Regulations and in paragraph 140 of Schedule A1 to the Act. If the local authority concluded that the person selected for appointment did not meet the criteria, it should refer the matter back to the best interests assessor. (5) It was likely to be difficult for a close relative or friend who believed that it was in the incapacitated person’s (“P’s”) best interests to move into residential care, and had been actively involved in arranging such a move into a placement that involved a deprivation of liberty, to fulfil the functions of RPR, which involved making a challenge to any authorisation of that deprivation. Best interests assessors and local authorities should therefore scrutinise very carefully the selection and appointment of RPRs in circumstances which were likely to give rise to this potential conflict of interest. (6) An IMCA appointed under section 39D of the 2005 Act (as inserted) had to act with diligence and urgency to ensure that any challenge to an authorisation under schedule A1 was brought before the court expeditiously. Failure to do so would lead to the evaporation of P’s article 5 rights. (7) The appointment of a RPR and IMCA did not absolve the local authority from responsibility for ensuring that P’s article 5 rights were respected. The local authority had to monitor whether the RPR was representing and supporting P in accordance with the duty under paragraph 140 of Schedule A1 and, if not, consider terminating his appointment on the grounds that he was no longer eligible. The local authority had to make sufficient resources available to assist an IMCA to ensure that all reasonable steps were being taken to pursue P’s article 5 rights. (8) In circumstances where a RPR and an IMCA had failed to take sufficient steps to challenge the authorisation, the local authority should consider bringing the matter before the court itself.
Appearances: Victoria Butler-Cole (instructed by Foot Anstey) for AJ, by her litigation friend, the Official Solicitor; Michael Dooley of Legal Unit, A Local Authority) for the local authority.
Reported by: Jeanette Burn, Barrister.
© 2015. The Incorporated Council of Law Reporting for England and Wales.