If you practice in this area of law, or work with people who do, you’ll have heard of this case, because it has set a lot of hares running in a number of cases. If you don’t, then you might not have given this case much thought unless your local authority legal team sends bulletins out for practitioners like my team and I do.
The case concerned DP who was, undoubtedly, suffering from a number of inter-related health issues. He was residing in a care home, with a standard authorisation in place and a s21A application was made on his behalf.
At first instance, the judge noted that there were a number of issues with the capacity assessment. In essence, these related to:
– the forms themselves (we’ve never seen issues with those before, right?)
– the assessor not setting out their qualifications and relevant experience
– the assessor not recording the questions asked, only the answers given
– context and reasoning not being clear
– the assessor not being clear to DP the purpose of their assessment
Nevertheless, the judge made an order setting out directions that included interim orders as to capacity. This was the main issue in the appeal.
On appeal, Mr Justin Hayden held that the judge should have considered whether to terminate the standard authorisation at that hearing, given the deficiencies in the capacity evidence. If the capacity evidence is that weak, this is a real option for judges. This is a principle I think we can all support. After all, if there is no real and convincing evidence of incapacity then a) the court has no jurisdiction to make any other decisions and b) the requirements for a standard authorisation haven’t been met. I see no legal issues with this principle, although I can see a few practical ones given the quality of a number of assessments I’ve seen over the years. But if we’re going to do things we really should do them properly
So this might lead to more s21A proceedings being brought to an end on the basis that standard authorisations should be terminated, but its some of the other comments made in the judgement that have lawyers all hot under the collar.
You see, Mr Justice Hayden makes a number of comments about the scope of s21A proceedings. If you’ve had first hand experience of these cases, you’ll know how they can ‘grow legs’ and end up exploring a whole host of issues. But that might need to stop. Or it might not. It’s a bit too soon to tell.
Because Mr Justice Hayden has stated that the scope should be limited to the issues relevant to the deprivation of liberty and the purpose of these proceedings should be to swiftly review whether the requirements for a standard authorisation are met. I have at least one case that has been going on for 2 years, which does seem excessive when considered in light of these comments. But no party has been dragging things out particularly its just that, well, sometimes things can take a while to figure out, especially if independent experts are required.
The significance of these comments is unclear at this point, though, given that Mr Justice Hayden also reaffirms the position that has always existed: it is for the presiding judge to decide what is relevant in each case. So peripheral issues can still be considered if he judge is satisfied that they are relevant. Which is less of a seismic shift than this appeared to be on my first reading of the judgement. And most of our local judges have not really changed their approach and continue to allow wider issues to be considered where they are satisfied the issues are relevant (although in one case this is being stretched to its limits with discussions around financial deputyship being somewhat shoe-horned in to s21A proceedings).
The judgement also suggests that judges should refrain from making interim declarations in s21A proceedings. Indeed, it says that no power to make such declarations exists in s21A proceedings. The court of protection rules appear to say otherwise, but they do not seem to have been discussed in this case so ambiguity remains. There are a couple of practical problems that such a position could create.
Firstly, anyone who has ever seen an order from the Court of Protection will know that these orders usually contain interim declarations as to capacity and best interests, even if just to maintain the status quo. So it sits uncomfortably with lawyers to not include such declarations (who likes change after all). There isn’t yet agreement as to what approach should be taken, and some schools of thought suggest taking these ‘declarations’ and making them ‘recordings’ instead. Since recordings are more an official record of what was considered and why, these don’t actually amount to any decision of the court. Other schools of thought, which I am inclined to agree with question whether this change in semantics can really be what Mr Justice Hayden envisaged. For what it is worth, I don’t think such recordings serve any real useful purpose, beyond those that have been identified as the second issue, which I’ll move on to in a moment. My preference is actually for a recording that states that the court has seen evidence that the qualifying requirements are met. This covers capacity and best interests, and maintains the status quo but in a much more ‘hands off’ way that appears to be in keeping with the DP judgement. But I’m just an in-house lawyer, so no doubt somebody cleverer than me will take issue with that approach at some point.
The second issue is more pressing, I think. Because these interim declarations are regularly used to specifically state that the person lacks capacity to litigate in the proceedings, in the interim. The reason why this is so important is that this is not covered by capacity assessments conducted for DoLS purposes. But it needs to be established in order for a litigation friend to be appointed. Use of interim declarations allows the court to surmise the position with regard to capacity to litigate from the totality of the evidence before it, whilst evidence on this issue is obtained. Without this, issues may be presented in appointing a litigation friend and in solicitors taking instructions on P’s behalf. I am not aware that this has become an actual issue in any cases yet, but if its come up for you, I’d be very interested to hear from you so feel free to contact me via the ‘contact me’ form, the comments or on our Facebook page.
One of the other issues raised by this case centres on the suggestion that the court should not take responsibility for deprivation of liberty during the proceedings and that this should always rest with the local authority. One interpretation of this approach would be for the courts to stop extending standard authorisations. This has become standard practice in many areas. After all, it is not uncommon for authorisation to be granted for a short period to enable proceedings to be brought, in acknowledgement of some issues with the placement. In such cases, the court will often extend the authorisation using its s21A powers. This has a number of benefits, since it ensures that there are no gaps in authorisation when one lapses but another is not yet in force, which is in the interests of P, the local authority and P’s solicitors whose legal aid funding will require a standard authorisation to be in existence. From a local authority point of view, it also enables stretched DoLS resources to be spared, since new assessments won’t be needed. This means the assessors can spend time with someone else whose case might need the scrutiny that the original case is already receiving by virtue of the s21A proceedings. So this element has us a bit worried.
Now again, there is an argument that the court wouldn’t be accepting responsibility by virtue of it extending the authorisation, because this is still an authorisation made by the local rand which they must continue to monitor and review. But the case of Re UF does not necessarily support that argument, since the court did say in that case it was taking responsibility when it extended the authorisation. When it did so, it also excluded the local authority from having any liability for the authorisation and I think that it was that wording, not the extension itself that transferred the responsibility. But I’ve not tested that argument yet, so I have no idea if any judge will agree with me.
Anecdotally, it doesn’t seem that many judges are taking this element of the judgment to heart either, and are continuing to extend authorisations. After all, the comments made about this issue in the judgement are persuasive only, not binding, since this wasn’t the issue at hand in the DP case.
I do wonder if this all will lead the legal aid agency to give greater scrutiny of the funding it gives in S21A proceedings whether either, peripheral issues have been considered that may not strictly fall within the scope of those proceedings or where authorisations are extended by the court rather than being renewed by the Supervisory Body. After all, legal aid budgets are just as stretched as any other publicly-funded budget.
So far though, for those of us in practice, the initial buzz around this judgment seems to have been something of a storm in a teacup. I have no doubt that lawyers who focus on the more theoretical and academic aspects of law will continue to paw over this judgement, and any future judgements citing it. with keen interest, however.
So watch this space.
In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority.