Article 5(4) of the European Convention of Human Rights (ECHR) states that anybody who is deprived of their liberty by arrest or detention is entitled to take proceedings by which the lawfulness of such detention shall be decided speedily by a court and their release ordered if the detention is found to be unlawful.
S21A of the Mental Capacity Act 2005 was adopted to ensure compliance with the ECHR. This section allows the Court of Protection to decide the lawfulness of a person’s (P's) detention pursuant to a standard authorisation.
RPRs (Relevant Person’s Representatives) and IMCAs (Independent Mental Capacity Advocates) can act as a litigation friend for P and initiate s21A proceedings. P is entitled to legal aid and legal assistance should be provided free of charge to represent P in these proceedings.
But when should IMCAs and RPRs contact a solicitor and apply under s21A?
In the case of Re RD and other (Duties and Powers of Relevant Persons’ Representatives and section 39D IMCAs)  EWCOP 4m, Baker J provided the following guidance on when RPRs and IMCAs should bring proceedings under s21A:
(1) The RPR must consider whether P wishes, or would wish, to apply to the Court of Protection. This involves the following steps:
- Consider whether P has capacity to ask to issue proceedings. This simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements. It is a lower threshold than the capacity to conduct proceedings.
- If P does not have such capacity, consider whether P is objecting to the arrangements for his/her care, either verbally or by behaviour, or both, in a way that indicates that he/she would wish to apply to the Court of Protection if he/she had the capacity to ask.
(2) In considering P's stated preferences, regard should be had to:
- any statements made by P about his/her wishes and feelings in relation to issuing proceedings,
- any statements made by P about his/her residence in care,
- P's expressions of his/her emotional state,
- the frequency with which he/she objects to the placement or asks to leave,
- the consistency of his/her express wishes or emotional state; and
- the potential alternative reasons for his/her express wishes for emotional state.
(3) In considering whether P's behaviour constitutes an objection, regard should be had to:
- the possible reasons for P's behaviour,
- whether P is being medicated for depression or being sedated,
- whether P actively tries to leave the care home,
- whether P takes preparatory steps to leave, e.g. packing bags,
- P's demeanour and relationship with staff,
- any records of challenging behaviour and the triggers for such behaviour,
- whether P's behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements.
(4) In carrying out this assessment, it should be recognised that there could be reason to think that P would wish to make an application even if P says that he/she does not wish to do so or, conversely, reason to think that P would not wish to make an application even though he/she says that she does wish to, since his/her understanding of the purpose of an application may be very poor.
(5) When P does not express a wish to start proceedings, the RPR, in carrying out his duty to represent and support P in matters relating to or connected with the Schedule, may apply to the Court of Protection to determine any of the four questions identified in s.21A(2) i.e. on the grounds that P does not meet one or more of the qualifying requirements for an authorisation under Schedule A1; or that the period of the standard authorisation or the conditions subject to which the standard authorisation is given are contrary to P’s best interests; or that the purpose of the standard authorisation could be as effectively achieved in a way that is less restrictive of P’s rights and freedom of action.
(6) Consideration of P's circumstances must be holistic and usually based on more than one meeting with P, together with discussions with care staff familiar with P and his/her family and friends. It is likely to be appropriate to visit P on more than one occasion in order to form a view about whether proceedings should be started.
(7) By way of an alternative to proceedings, it may be appropriate to instigate a Part 8 review, or to seek to work collaboratively with the family and the commissioning authority to see whether alternate arrangements can be put in place. Such measures should not, however, prevent an application to the court being made where it appears that P would wish to exercise a right of appeal.
(8) The role of the IMCA appointed under s.39D is to take such steps as are practicable to help P and the RPR understand matters relating to the authorisation set out in s.39D(7)(a) to (e), and the rights to apply the Court of Protection and for a Part 8 review, and how to exercise those rights. Where it appears to the IMCA that P or the RPR wishes to exercise the right, the IMCA must take all practical steps to assist them to do so. In considering P's apparent wishes, the IMCA should follow the guidance set out above so far as relevant.
 Finally, on the general issues arising, although I have in these proceedings considered, as a preliminary issue, the question whether applications in these proceedings are properly brought, this question should not normally be raised as a preliminary issue in every case, either on an application by the respondents to strike out the application or by some other process. Such a course would lead to unnecessary satellite litigation and would only add to the delays in, and burdens on, the Court of Protection.
The consequence is therefore that if it appears to the IMCA that P or the RPR wishes to exercise the right, they must take all practical steps to assist them to do so.
Author Fernanda Stefani
is a consultant solicitor in the mental health department at Duncan Lewis Solicitors with significant expertise in mental capacity and S21A matters. She works under the direction of Rachel Caswell, director of the mental health and court of protection departments based in the firm’s Dalston office.
Contact Rachel on 02072 752793
or at at email@example.com
Contact Fernanda on 07383 828368
or at firstname.lastname@example.org
Duncan Lewis Court of Protection Department
Duncan Lewis' Court of Protection Department assists individuals in both publicly and privately funded cases from offices across London and throughout the UK. The department is recommended by the independent legal directory, The Legal 500, as a leading practice in cases that overlap mental health and capacity, and deprivation of liberty safeguards.
For more information about our Court of Protection team, please visit our team page
or contact Duncan Lewis Solicitors on 0333 772 0409.