Public Law Solicitors

The Mental Capacity Act 2005 ensures that people who lack the mental capacity to make specific important decisions must have a party to do so on their behalf. This could be a Relevant Persons Representative (RPR), or an Independent Mental Capacity Advocate (IMCA).

Article 5(4) of the European Convention of Human Rights sets out the following:

“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.”

From this arose the issue of depriving those with mental incapacity (for their own safety) of their liberty, and ensuring their detainment was necessary. To provide for this S 21 A of the Mental Capacity Act 2005 was adopted. This section allows the Court of Protection to make decisions regarding the lawfulness of P's detention pursuant to a Standard Authorisation.

Following the case of P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19, the number of applications under Schedule A1 of the Mental Capacity Act 2005 has increased. The person these proceedings relate to often cannot make an application to the Court, and so the following persons often have to do so on their behalf:

Local Authority

RPR

IMCA- S 39 D

Family members.

Essentially, P and his/her RPR can make an application to the Court of Protection at any time without permission.

The case of JM & Ors, Re Mental Capacity Act 2005 [2016] EWCOP 15 emphasised the importance of ensuring there is “someone” to challenge the detention:

At paragraph 19, Charles J found that the Secretary of State had demonstrated:

“…an avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people who the Supreme Court has held are being deprived of their liberty.”

This emphasised that third parties are increasingly going to be relied upon to bring matters before the Courts.

The obligation:

In the case of AJ (Deprivation Of Liberty Safeguards) [2015] EWCOP 5, the following was established:

“114. Secondly, professionals need to be on their guard to look out for cases where vulnerable people are admitted to residential care ostensibly for respite when the underlying plan is for a permanent placement without proper consideration as to their Article 5 rights.”

“118. Sixthly, 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.”

In simple terms, where there is a sustained objection by X to the placement in a care home or hospital the above persons are obligated to consider if S 21 A proceedings are required. Considerations must be given to the challenge to decide if the action is appropriate and necessary.

The differences between a RPR and IMCA:

“Whereas RPRs have a wide role to represent and support P in matters relating to or connected with Schedule A1 MCA the s.39D IMCA's role is much more narrow and is confined to the specific duties in s.39D (7), (8) and (9) MCA”.

The sections can be found here:

Briefly, the roles are as follows:

1. Section 39A IMCAs are instructed when there is an assessment in response to a request for a standard authorisation, or a concern about a potentially unauthorised deprivation of liberty.
2. Section 39C IMCAs cover the role of the relevant person’s representative when there is a gap between appointments.
3. Section 39D IMCAs support the person, or their relevant person’s representative, when a standard authorisation is in place.

Further to this:

“The RPRs obligations are as follows:

An RPR should take all steps to identify whether P wishes to exercise the right to apply to the CoP. The RPR must focus on the question whether P wishes to apply to the court and not simply whether he or she objects to the arrangements for their care. If the RPR concludes that P wishes to apply, it is the RPR's duty to ensure the application is brought on behalf of P;

Where P is unable to communicate his/her wishes, the RPR should consider what those wishes would be if P were able to communicate them;

An RPR should also assess for themselves whether an application should be made, independent of any wishes expressed by P. In particular the RPR should consider whether one of more of the qualifying requirements for a deprivation of liberty as defined in Part 3 of Schedule A1 are not met.

In contrast, a s.39D IMCA is only required to take such steps as are practicable to help P or an RPR to apply to court if it appears to the IMCA that P or the RPR wishes to exercise that right”.

When an RPR should be appointed:

Baker J stated as follows:

“A person is only eligible to be an RPR if they will, as part of supporting the relevant person, take appropriate steps to support the person to challenge any authorisation granted under Schedule A1 (paragraph 82);”

“RPR should only be selected or confirmed by a BIA where he or she satisfies 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 of the MCA. This requires that the BIA not only checks that the facts set out in regulation 3 are satisfied but also carries out an analysis and reaches 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 the Schedule and (c) support the relevant person in matters relating to or connected with the Schedule.”

Regulation 3 can be found here

When an IMCA should be appointed:

Baker J stated as follows:

“The functions of a section 39D IMCA are as set out in that section, as supplemented by Schedule A1, and concern matters relating to the deprivation of liberty provisions under the Schedule. An IMCA appointed under section 39D does not have a broader, general role of representing or supporting P, and is not under a general duty to assist in determining what is in P’s best interests but, rather, to perform the specific functions set out in section 39D(7), (8) and (9) [i.e. in very broad terms, supporting the RPR and the relevant person to understand matters relating to the authorisation and helping them exercise their rights to apply to court or for a Part 8 review] (see paragraph 108);”

If an IMCA and RPR fail to bring proceedings:

“120. Finally, in circumstances where a RPR and an IMCA have failed to take sufficient steps to challenge the authorisation, the local authority should consider bringing the matter before the court itself. This is likely, however, to be a last resort since in most cases P’s Article 5 rights should be protected by the combined efforts of a properly selected and appointed RPR and an IMCA carrying out their duties with appropriate expedition.”

If P is able to articulate their wishes:

In many cases P is not able to clearly articulate their views (i.e. for clinical reasons), leaving RPRs and IMCAs to exercise their discretion in a grey area. The case of RD and others (Duties and Powers of Relevant Person's Representatives and Section 39D IMCAS) (Rev 1) [2016] EWCOP 49 has offered some guidance in relation to this.

When an RPR should issue if P’s wishes are unclear:

Essentially, the process below should be followed in relation to RPRs:

“(1) The RPR must consider whether P wishes, or would wish to apply to the Court of Protection. This involves the following steps:

(a) 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.

(b) 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 would wish to apply to the Court of Protection if he had the capacity to ask.

(2) In considering P's stated preferences, regard should be had to:

(a) Any statements made by P about his/her wishes and feelings in relation to issuing proceedings;

(b) Any statements made by P about his/her residence in care;

(c) P's expressions of his/her emotional state;

(d) The frequency with which he/she objects to the placement or asks to leave;

(e) The consistency of his/her express wishes or emotional state; and

(f) The potential alternative reasons for his/her express wishes.

(3) In considering whether P's behaviour constitutes an objection regard should be had to:

(a) The possible reasons for P's behaviour;

(b) Whether P is being medicated for depression or being sedated;

(c) Whether P actively tries to leave the care home;

(d) Whether P takes preparatory steps to leave, e.g. packing bags

(e) P's demeanour and relationship with staff;

(f) Any records of challenging behaviour and the triggers for such behaviour;

(g) 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 whether it appears that P would wish to exercise a right of appeal.”

When an IMCA should issue in similar circumstances:

“(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 to 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.”

Ramifications from RD and others (Duties and Powers of Relevant Person's Representatives and Section 39D IMCAS) is that RPRs and s.39D IMCAs are now specifically required to assess capacity which may require additional support and training.

Duncan Lewis Solicitors is one of the largest Legal Aid providers in the UK. Our firms aim is to provide an excellent customer service, while giving a “voice to all”. Duncan Lewis are recognised by Legal 500 2016 Edition UK-Wide for its expertise in Court of Protection practice, and Legal 500 2016 edition applauds Duncan Lewis for its specialism in cases that overlap between mental health/capacity issues and deprivation of liberty safeguards. Duncan Lewis boasts a Multi-disciplinary approach in Court of Protection proceedings with collaboration from experts in the Mental Capacity, Mental Health, Community Care, Clinical Negligence and Public Law departments.

Duncan Lewis Solicitors would like to take this opportunity to indicate that it would be willing to provide a free meet and greet opportunities to provide training in relation to the above. We are particularly pleased to offer this service to advocacy services and IMCA/ IMHA organisations. This session can be kept as informal or formal, as the organisation would wish. You will not be obligated in any way to consider these firms services, and any session would be completely free of charge.

If you would like to contact Duncan Lewis Solicitors for more information on training options with the Public Law team, please contact:

Helen Cummings
Trainee Solicitor
Email: Helenc@duncanlewis.com
DDI: 02031141336
Fax: 020 7923 3320
Branch: Harrow