I’ve been notified about s21A proceedings, what do I do?

This is a question I get asked a lot, so I will try to talk you through the process as well as I can, both for professionals and family members.

If you don’t know what s21A proceedings are, don’t worry, not many people do. They are very specialised proceedings in the Court of Protection brought to enable a judge to review whether the requirements to allow authorities to deprive someone of their liberty in a hospital or care home are met or not. This is an important safeguard against arbitrary use of powers and you can read more about why this is so valuable here.

Most of the time, the judge is looking at whether the person lacks capacity or not, or whether or not the care arrangements are in the person’s best interests. Best interests is a legal test, and does not necessarily mean the same as ‘what I think is best for them’.

The majority of these cases are brought by advocates against as paid Relevant Person’s Representatives (RPRs) under a standard authorisation within the Deprivation of Liberty Safeguards scheme. To be a s21A case, there must be a standard or urgent authorisation in place. But the proceedings can be brought by the local authority, a family member RPR or another person interested in the issues at hand.

Before starting proceedings, the interested parties should try to resolve the issues themselves so solicitors approached to bring these proceedings will usually make contact with the local authority as a minimum, and sometimes other parties too, especially if the issues are finely balanced.

Because if a person is objecting to their placement, then the law says the proceedings have to be brought even if nothing is likely to change. Just because a person has a condition which causes them to lack capacity, doesn’t mean that they aren’t entitled to the same rights as everyone else. And if you or I were locked in somewhere we didn’t want to be, we’d be getting the law involved one way or another.

But sometimes it is hard to know if someone is objecting to a placement. Their behaviour might be difficult to interpret, they may not be able to communicate their wishes clearly. And in those cases, then the solicitors who are asked to bring proceedings might want to speak to other people involved in the person’s care to help them decide what is or is not an objection. The law is very clear that we should err on the side of caution though, so in most cases, if it isn’t clear whether someone is objecting or not, proceedings are likely to be brought.

So professionals usually find out that proceedings are going to be brought before the court is involved. Family members will, more often, find out when they receive a formal letter notifying them of the proceedings with a form called a COPDLE attached.

At this stage, my advice to both professionals and family members is simple: Don’t panic!

That the proceedings have been brought doesn’t mean that you have done anything wrong. It also doesn’t mean that the court is going to give the person exactly what they want. A lot of the time even the solicitors representing the person aren’t advocating for the person to be given everything they want. Often what they want is to be left alone with no involvement from services but all parties know that if that happened, serious harm is likely to occur.

If you are a professional, when you hear about proceedings being brought, it is a good time to start checking your records are accurate. And if you’ve been putting off reviewing the person, it’s probably best to schedule in that review. And speak to your legal team. If there is something that went wrong, or some bad practice at some point, flag it with your legal team early and they’ll be able to help mitigate against the fall out from that (often by owning up to it, and then fixing the problem. But not always, so be sure to speak to your legal team on each case). The local authority won’t have the option of not being involved in the proceedings, and if an NHS Trust or CCG is involved in directing and commissioning care, they are very likely to be added to the proceedings too. So it’s good to start conversations early, and get your ducks in a row.

If you are a family member, then what you need to do is decide how much (or little) involvement you want to have in the proceedings. You don’t have to have any involvement at all. And if that is what you choose then you don’t need to fill in the COPDLE form.

Choosing not to be involved in the proceedings doesn’t mean you won’t get to be involved in decisions about the person. Because the court has to take into account views of anyone interested in the person’s welfare when making decisions about someone’s best interests. So you will still be invited to attend care planning reviews, best interests meetings etc. But you won’t get copies of all of the papers that go to the court automatically, nor will you be told when all the hearings will be automatically either.

It is possible to request papers from the court proceedings and to request to attend hearings. But the key word there is request. You won’t get things as of right. Most of the time, the parties will be willing to share this information with you and will not object to this being included in orders. So if you want to know what is going on without being a party, then it is a good idea to speak to the solicitors involved about this. But they can’t share documents without the court’s permission, which it means you might not get the papers you request right away.

If you want to put your position to the court though, as opposed to your views in best interests meeting minutes (which are usually shared with the court) then you will usually be better off asking to be a party to the proceedings. This really isn’t like the courts you see on TV so don’t be scared by the prospect of going to court. I’ve set out some pointers on what it is like here.

You do not have to get solicitors if you want to be a party to the proceedings. You can be a party as a ‘litigant in person’. If you choose to do that then the judge and lawyers involved will take special care to make sure you understand what is happening and have the opportunity to say what you want to say.

Legal aid is available for cases in the Court of Protection, but eligibility does depend on your finances and the ‘merits’ of your case. Legal aid rules are complex, but generally if you have more than £8000 in savings, you are unlikely to be eligible financially. And if you are arguing for a course of action that is never realistically going to happen then you’ll not meet the merits test.

But you can approach solicitors who have a legal aid contract for community care and they can advise you about when you will be eligible without charging you.

If you do want to be a party to the proceedings, then complete the COPDLE and send it to the solicitors who sent it to you and to the court. At the next hearing, the judge will decide whether or not you should be added as a party, and will usually allow you to be a party if you have clear reasons for wanting to be involved.

I almost forgot to say that if you hold a welfare power of attorney for the person the proceedings are about, chances are you’ll be made a party at some point in the proceedings anyway, since you are the one that the person chose to make decisions on their behalf. If the person self-funds their care and you manage their finances, then again, you are likely to be made a party since you’re the one who’ll need to make arrangements with a new care provider, if the court decides that is what is in the person’s best interests. So it is really better to be part of the proceedings and address the judge on what you think is best whilst they are ongoing. Refusing to make the new arrangements after a judge has decided that is what is in their best interests is very unlikely to result in the person staying where you want them to be, and very likely to result in attempts to revoke the power of attorney.

I’ll talk more about how the court makes decisions about capacity and best interests in my next post, so keep an eye out for that.

In case it isn’t obvious from the fact I still haven’t identified the authority I worked for, or the firm I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or firm.

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