AJ (Deprivation Of Liberty Safeguards)

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.

AJ is now aged 88. She has lived in her local area all her life. In 2002, she moved to live in an annexe of the home of her niece and her husband (hereafter referred to as “Mr and Mrs C”). Like many elderly people, AJ sadly developed vascular dementia and became increasingly dependent on others, in particular Mrs. C. She was, however, very reluctant to acknowledge her condition, and insistent that she could manage without any help. On one occasion, when Mr and Mrs. C went away on holiday leaving arrangements for carers to visit the property, AJ refused to cooperate, leaving her keys in the door so that the carers could not get in, and declining offers of personal assistance.

On 12^th April 2013, AJ signed Lasting Powers of Attorney (“LPAs”) in respect of both health and welfare and property and financial affairs naming Mr. and Mrs. C as donees. No challenge is made as to the validity of either LPA.

At around this time, AJ was referred to social services by a psychiatric nurse. When a local authority case co-ordinator visited on 22^nd April 2013, Mrs. C raised the possibility of respite care for AJ to prevent the breakdown of the care arrangements. When the social worker visited again on 16^th May, Mrs. C told her that AJ was still refusing help, and had now developed a problem with swallowing. At that point, the case was transferred to another social worker, “Ms B”, a member of the early intervention service. When Ms B telephoned on 21^st May, Mrs C told her she thought that AJ was no longer safe at home because she was not eating and drinking. She added, however, that AJ would not willingly go into a residential home. In her statement for these proceedings, Ms B says that she “discussed arranging a meeting to assess AJ with a Deprivation of Liberty Safeguards assessor as it was apparent AJ, if placed in a care home for respite, may be considered as deprived of her liberty”.

On 5^th June, Ms B made a home visit with another social worker. Mrs. C made it clear that she could not continue with her caring role in its current form as she and her husband had planned a fortnight’s holiday starting 15^th June. Mrs. C said that she now felt that permanent residential care was required. AJ was still not eating properly and had lost a lot of weight, and was continuing to resist offers of help. Mrs. C said she was exhausted in her caring role. Ms B offered to find the nearest suitable home for respite while Mr. and Mrs. C were away, and duly identified a home, X House, for that purpose. In her statement, she states: “it was hoped that if AJ settled she could remain in the care home on a permanent basis”.

In the course of her conversations with Ms B, Mrs. C mentioned the LPAs which AJ had recently executed. On 29^th May, the LPAs were registered with the Office of the Public Guardian.

On 13^th June, Mr. and Mrs. C took AJ to X House. Upon arrival, she 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 of the Mental Capacity Act 2005 (“MCA”) had been carried out prior to her arrival but an urgent authorisation under the Schedule was granted by the manager at X House on 14^th June. The urgent authorisation recorded inter alia that AJ had been placed at the home whilst her main carers, Mr. and Mrs. C, went on holiday for two weeks, “with a view to [AJ] staying here on a permanent basis”. On the same day, a request was made to the local authority as the supervisory body for a standard authorisation.

On 17^th June, the local authority appointed “Ms G” as best interests assessor (hereafter “BIA”) to carry out a best interests assessment in accordance with the provisions of Schedule A1. On 18^th June, Ms G attended X House where she spoke to the clinical lead and reviewed the care plan. She also met AJ who told her that she was angry about the decision that she should be accommodated. She accepted that she would be “forced” to remain there while her niece and her husband were away, but said she expected to go home as soon as her niece returned from holiday. She said that she did not need the help of anyone else, asserting that she was independent and capable of looking after herself at home without any additional care or supervision, but added that Ms G should speak to Mr. and Mrs. C.

On 18^th and 19^th June, Ms G spoke at some length by telephone to Mr. and Mrs. C while they were on holiday. They reiterated to her that they no longer felt it was safe for AJ to live at home, and told her that they wished to consider all options for her care and residence, and that it would be safe and proportionate for her to remain at X House until those matters were resolved.

In her first best interests assessment dated 20^th June 2013, Ms G 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 her niece and husband came back from holiday. Ms G therefore recommended the grant of a standard authorisation for a limited period of 21 days. In her statement for these proceedings, she explained that she had recommended this short period because of the uncertainty of the situation. Following this assessment, and on the basis of Ms G’s recommendation, the local authority on the same day, 20^th June 2013, granted a standard authorisation under Schedule A1 until 10^th July 2013. The authorisation was subject to a condition that the managing authority under the Schedule (i.e. X House) should ensure that AJ’s care plan did not result in any additional unauthorised restrictions, should monitor and manage the restrictions currently in place, and notify the supervisory body under the Schedule (i.e. the local authority) of any changes to the care plan immediately with a request for a review.

As a result of her meeting with AJ, Ms G formed the view that she lacked the capacity to appoint a representative (“relevant person’s representative”, hereafter “RPR”, under Part 10 of Schedule A1, discussed below). Having discussed this aspect with Mr. and Mrs. C in the course of their conversations, Ms G concluded that Mr. C should be appointed as RPR.

In her conversations with Mr. C, Ms G also raised the question whether an independent mental capacity advocate (“IMCA”) should be appointed. Mr. C indicated that he approved of this suggestion, and on 21^st June, Ms G referred AJ to the supervisory body for the appointment of an IMCA under s. 39D of the Act. She completed a standard form, headed “IMCA referral form”, and under the heading “Part B – type of IMCA referral” put a cross in the box numbered B8 next to the words on the form reading “39D – the supervisory body believes that the person deprived of their liberty and their unpaid representative relevant person’s representative will both benefit from the support of an advocate”. On 24^th June, Mr. R was appointed to act as AJ’s IMCA.

On 25^th June, a best interests meeting took place, chaired by a safeguarding senior practitioner and attended by, inter alia, Ms B and Mr. and Mrs. C. The minutes record Mrs. C reiterating the difficulties they had experienced caring for AJ; that the chair asked if AJ had ever expressed any wish not to go into care; that Mr. and Mrs. C explained that she had never vocalised her wishes but they knew that she would not want to; but that Mr. and Mrs. C felt that permanent care would be the best option. Those attending the meeting agreed that it was in AJ’s best interests to remain in care, but that she should move to another home – hereafter “Y House” – which was better suited for her needs.

On 30^th June Ms G as BIA completed another standard form “Selection of a Representative” indicating that AJ had a donee whose authority under the LPA permitted them to select a family member, friend of carer to be their RPR, that the donee had selected Mr. C to act in that capacity, that he was eligible to be appointed, and that she, Ms G, therefore recommended his appointment.

On 4^th July, AJ moved to Y House where she has remained ever since. In preparation for a further best interests assessment, Ms G visited Y House on 9^th July where she saw AJ who said “when can I go home – can you help me?” When told of the decision of Mr and Mrs. C that she should remain at Y House, she replied “bullshit, I will not, I am going home”. Ms G concluded that AJ objected strongly to the decision made for her and was able to articulate her feelings clearly. In her second assessment dated 10^th July, Ms G confirmed that AJ was being deprived of her liberty, that the restrictions were necessary to prevent harm, that the care plan and restrictions on her liberty were in her best interests, and that the authorisation should be renewed for a period of six weeks. She completed a further “Selection of a Representative” form recording that the donees under the LPA had selected Mr. C to act as RPR, again confirming that he was eligible, and recommending his appointment. On the same date, the local authority as supervisory body renewed the standard authorisation until 21^st August 2013, on the basis of the same conditions as set out in the earlier authorisation.

On 22^nd July, Ms B received a message to speak to a friend of AJ, hereafter referred to as “ND”. When she returned his call, he expressed the view that AJ had been “dumped” at Y House. Ms B told him that the correct process had been followed and that, as he was not AJ’s next of kin, her needs could not be discussed further with him.

At the expiry of the second authorisation, the same process was repeated, and a third authorisation granted, this time for a period of six months. In addition to the earlier conditions, which were repeated again, the authorisation granted on 21^st August also included conditions that for the duration of the authorisation the managing authority should enable AJ greater opportunity to exercise her Article 8 rights, and to that end consider ways to support her to access her local community, and keep an activity log to facilitate subsequent reviews.

Despite AJ’s known opposition to living at Y House, no legal challenge was made to the standard authorisations for several months. The reasons for this failure lie at the heart of this case. The evidence clearly demonstrates that during this period there was no effective communication between Mr. C as RPR and Mr R, the IMCA. Mr. R first visited AJ on 31^st July 2013, and then spoke on 6^th August to Ms G who was in the course of carrying out her third best interests assessment. According to the BIA, he told her that he had yet to make contact with Mr. C, whereupon she advised him that Mr. C was keen to discuss his role as RPR as soon as possible. Ms G and Mr. R then went to see AJ together on 19^th August. After that meeting, according to Ms G, Mr. R said was unsure if he would pursue an appeal for AJ at that time. When she asked about this uncertainty, he replied that it was not uncommon for many older people in care to state a desire to return home and that judgments about any appeal were difficult for IMCAs when it is apparent that they need residential care. According to Ms G, however, Mr. R acknowledged that the strength of AJ’s objection indicated a need to pursue some action and that he would first wish to speak to Mr. C as RPR. In his evidence, Mr R could not recall saying he was “unsure” about pursuing an appeal, although he told the court that he was aware of inconsistency in patients’ responses in these situations. After this, Mr. R was away on sick leave for some time and then on annual leave. He tried to contact Mr. C twice on 9^th October and again on 5^th November before finally succeeding in speaking to him on 7^th November. It was Mr. C’s evidence that he wanted to speak to the IMCA, but Mr. R told the court that he was unaware that Mr. C was keen to speak to him. When they finally spoke, Mr. R realised that Mr. C was not going to initiate proceedings and after further conversations with his manager he agreed to act as her litigation friend and instruct solicitors to make an application to the Court on her behalf.

On 20^th December 2013, over six months after AJ had been admitted into residential care, an application was finally filed by AJ through Mr. R acting as her litigation friend, challenging the standard authorisation dated 21^st August 2013. Initial directions were given by District Judge Batten on 23^rd December, including provision for an early hearing before HHJ Tyzack QC in Exeter. That hearing took place on 7^th February 2014 when the learned judge extended the authorisation until the next hearing and gave further directions.

On 7^th March 2014, AJ through her litigation friend filed particulars of claim against the local authority for declarations and damages under s.7 of the Human Rights Act 1998. It was asserted that (a) there was, judged objectively, a real risk that AJ would be deprived of her liberty from the outset of her stay at X House; (b) a DOLS authorisation or order from the Court of Protection should have been put in place prior to her move there, or alternatively as soon as possible after her arrival; (c) the local authority should not have appointed Mr C as the RPR and should instead have appointed a paid RPR; (d) the local authority should have ensured that the s.39D IMCA was able promptly to exercise his responsibilities under the Act, in particular by acting as litigation friend in s.21A proceedings; (e) had the local authority taken these steps, AJ would have been able to challenge the interference with her rights under Articles 5 and 8 of ECHR more swiftly; (f) in the alternative, the local authority should itself have issued proceedings in the Court of Protection. It was claimed that, by reason of the above failures, AJ’s rights under Article 5(4) were unlawfully violated for the whole or part of the period 21^st May to 18^th November 2013, and she was unlawfully deprived of her liberty between 13^th and 20^th June 2013.

On 13^th March, Mr. R was replaced as litigation friend by the Official Solicitor. On 18^th March, the local authority filed a defence denying the alleged breaches. On 7^th April, Judge Tyzack transferred the case to me and I duly conducted a two-day hearing in Truro on 21^st and 22^nd May 2014. Prior to the hearing, the Official Solicitor conceded that, in view of evidence as to a deterioration in AJ’s condition and behaviour, and to the fact that there was no domiciliary care agency willing to offer to provide care, it was no longer appropriate to put forward a positive case that she should return home so that the substantive application under s.21A could no longer be pursued. He added, however, that he had residual concerns about the type and degree of physical intervention being used, and that further investigation was required to ensure that this aspect of her care was expressly included in any standard authorisation or care plan approved by the Court when making an order concluding the s.21A application. In the circumstances, however, the principal issue remaining was the claim under s.7 HRA. Here, too, the Official Solicitor indicated a change of position, indicating that no claim for damages would be pursued, confining the claim to a declaration and costs.

At the hearing, I heard oral evidence from Mr. R, Mr. C and Ms G (each of whom had filed written statements, in addition, in Ms G’s case, to the best interests assessments already cited.) Having heard oral submissions, I then adjourned to allow the parties an opportunity to file supplemental written submissions, and also the local authority to file evidence in the light of further assessments as to the care plan and, in particular, the details of the plan for physical intervention. This material was duly filed as directed by the end of June. By that stage, however, it was known that a case proceeding before the President (subsequently reported as Re X and Others (Depravation of Liberty) [2014] EWCOP 25) would address a wide range of issues consequential upon the decision of the Supreme Court in P v Cheshire West and Chester Council; P and Q v Surrey County Council [2014] UKSC 19 (“Cheshire West”) and I concluded that it would be prudent to await the President’s judgment before reaching a final conclusion on the various issues that arise in this case. The supplemental material, and the further case law, gave rise to further questions which I put to the parties’ advocates who duly replied in writing.

At this point, I wish to pay tribute to the efforts and insights of the advocates in this case, Miss Victoria Butler-Cole on behalf of AJ and Mr. Michael Dooley on behalf of the local authority. Their expertise in this area of the law is rightly well-known, and their work in this case has been of very considerable assistance.

Before turning to the principal issue concerning the alleged breach of AJ’s rights under Article 5 of ECHR, I must refer briefly to the residual issue that arose during the hearing concerning the care plan, raised by the Official Solicitor, namely the type or degree of physical restraint used. I can deal with this issue briefly. A supplemental assessment by the BIA, Ms G, highlighted that the level of physical restraint being used by carers in Y House was greater than acknowledged in the care plan. Following the conclusion of the hearing, the residential home prepared an amended care plan for personal care interventions and indicated that it would record physical interventions in a daily physical intervention log at each personal care intervention. The revised plan does not include any specific reference to physical restraint being used, save that it is noted that, if AJ “starts to become physically aggressive the carers are required to adopt ‘walls and block’ stance”.

In supplemental submissions, Ms Butler-Cole on behalf of the Official Solicitor submitted that in any case in which physical restraint is used in the care of an incapacitated adult, any physical intervention, whether considered to amount to “restraint” or not, should be recorded in the care plan maintained by the service provider and monitored by the statutory body responsible for commissioning the person’s care. Furthermore, precise details of all physical interventions should be ascertained and documented as part of the Deprivation of Liberty Safeguards process or indeed any best interest assessment from direct discussion with care staff implementing the interventions.

I agree. In this case, whilst there may at one stage have been a discrepancy between the care plan and what was actually being provided, I am now satisfied that the local authority has addressed this issue in its amended plan. If, however, any further issue arises, or any party seeks any further declaration or order on this issue, the matter should be referred to me for further review.

It is widely recognised that the statutory and regulatory provisions established under the MCA, in particular the amendments introduced by the Mental Health Act 2007, are tortuous and complex. The provisions engaged in this case are no exception, and it is regrettably necessary to set them out in some detail, together with relevant extracts from the two lengthy codes of practice, the Mental Capacity Act 2005 Code of Practice (hereafter “the MCA Code of Practice”) and the Mental Capacity Act 2005: Department of Liberty Safeguards Code of Practice (hereafter “the DOLS Code of Practice”). At this point, I shall set out the general provisions, followed by the case law relevant to those provisions. The relevant specific provisions concerning RPRs and IMCAs will be set out and considered later.

The starting point is Article 5 of ECHR. Article 5(1) provides that everyone has the right to liberty and security of person and that no one shall be deprived of their liberty save in cases specified in the Article (which include cases involving persons of unsound mind) and in accordance with a procedure prescribed by law. Article 5(4) provides:

“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 his detention is not lawful.

The ECHR was incorporated into domestic law by the Human Rights Act 1998, s. 6 (1) of which provides that “it is unlawful for a public authority to act in a way which is compatible with a Convention right”.

Section 1 of the MCA sets out the principles to be applied by all who take actions or make decisions in respect of a person who lacks capacity (“P”). Of particular relevance here are subsections (5) and (6):

“(5)

An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6)

Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.”

Section 4 identifies the factors to be taken into account when determining what is in P’s best interests.

S.4A entitled “Restriction on deprivation of liberty”, provides:

“(1)

This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

(2)

But that is subject to–

(a)

the following provisions of this section, and

(b)

section 4B [concerning life-sustaining treatment].

(3)

D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4)

A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.

(5)

D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).”

Under s.15(1)(c), the Court of Protection may make declarations, inter alia, as to “the lawfulness or otherwise of any act done, or yet to be done, in relation to [P]”. Under s.16(2)(a), the court “may, by making an order, make the decision or decisions on P’s behalf in relation to”, inter alia, matters relating to P’s personal welfare. Under s.16A, however, the court may not include in a welfare order provision which authorises P to be deprived of his liberty if P is “ineligible” to be deprived of his liberty by the provisions of the Act, specifically Schedule 1A.

The statutory provisions which establish a procedure for the authorisation of the deprivation of liberty in cases involving a mentally incapacitated adult were introduced into the MCA by amendments passed in the Mental Health Act 2007. These amendments include a new Schedule A1 which lays down in 188 paragraphs the provisions known as the Deprivation of Liberty Safeguards (“DOLS”) setting out inter alia (1) the procedure whereunder a supervisory body may authorise a deprivation of liberty, (“standard authorisation”); (2) the procedure whereunder the managing authority of a care home of hospital may authorise a deprivation of liberty for the period pending the grant of a standard authorisation (“urgent authorisation”); (3) the qualifying requirements for making authorisations; (4) procedures for carrying out of assessments to establish whether the requirements are satisfied, including an assessment by a best interests assessor (“BIA”); (5) a process for instigating and carrying out a review of a standard authorisation; (6) provisions concerning “relevant person’s representatives” (“RPRs”); and (7) provisions concerning independent mental capacity advocates (“IMCAs”). For the purpose of this judgment, it is unnecessary to consider the majority of these provisions. Those relating to RPRs and IMCAs are considered below.

The DOLS Code of Practice states (in the opening paragraphs of Chapter 3) that

“in the vast majority of cases, it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins. There may, however, be some exceptional cases where the need for the deprivation of liberty is so urgent that it is in the best interests of the person for it to begin while the application is being considered.”

It is in these circumstances that the managing authority of the hospital or home may give an urgent authorisation. Under paragraph 78 of Schedule A1, the duration of an urgent authorisation given by the managing authority of a care home of hospital pending the grant of a standard authorisation must not exceed seven days. In certain exceptional circumstances, if the request for a standard authorisation has not been disposed of within that period, the supervisory body at the request of the managing authority may extend the duration of the original urgent authorisation by no more than seven further days.

The powers of the Court in relation to Schedule A1 are set out earlier in the Act at s.21A:

“(1)

This section applies if either of the following has been given under Schedule A1–

(a)

a standard authorisation;

(b)

an urgent authorisation.

(2)

Where a standard authorisation has been given, the court may determine any question relating to any of the following matters–

(a)

whether the relevant person meets one or more of the qualifying requirements;

(b)

the period during which the standard authorisation is to be in force;

(c)

the purpose for which the standard authorisation is given;

(d)

the conditions subject to which the standard authorisation is given.

(3)

If the court determines any question under subsection (2), the court may make an order–

(a)

varying or terminating the standard authorisation, or

(b)

directing the supervisory body to vary or terminate the standard authorisation.

(4)

Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters–

(a)

whether the urgent authorisation should have been given;

(b)

the period during which the urgent authorisation is to be in force;

(c)

the purpose for which the urgent authorisation is given.

(5)

Where the court determines any question under subsection (4), the court may make an order–

(a)

varying or terminating the urgent authorisation, or

(b)

directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation.

(6)

Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.

(7)

An order under subsection (6) may, in particular, exclude a person from liability.”

In applying those provisions, and assessing whether there was any infringement of Article 5(4) in this case, I have had regard to the case law, both European and domestic. The leading European cases are X v United Kingdom (1981) 4 EHRR 188; Winterwerp v The Netherlands (1979) 2 EHRR 387; Waite v UK [2002] ECHR 804; Shtukatarov v Russia (2008) 54 EHRR 962; Stanev v Bulgaria (2012) 55 EHRR 696, MH v UK [2013] ECHR 1008, and, most recently, Ivinovic v Croatia [2014] ECHR 964. From those authorities, the following principles can be summarised:

In domestic law, the fundamental principle to be applied by the Court of Protection in cases of deprivation of liberty was summarised by Peter Jackson J in Neary v LB of Hillingdon [2011] EWHC 1377 (COP) at para 202:

“… there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court”.

In the recent case of Re X and Others (Deprivation of Liberty) [2014] EWCOP 25, Sir James Munby, President of the Court of Protection gave guidance on matters of practice and procedure in the Court of Protection following the judgment of the Supreme Court in the Cheshire West case. Of relevance to this case is the President’s answer to the question whether P needs to be joined in the application to the court seeking authorisation of a deprivation of liberty and, if so, where there is a requirement that P must have a litigation friend. The President pointed out (at paragraph 18) that neither the COP Rules nor the ECHR require P to be joined as a party to the proceedings although Article 5(4) entitles P to “take proceedings”. The President continued (at paragraph 19):

“What the Convention requires is that P be able to participate in the proceedings in such a way as to enable P to present their case “properly and satisfactorily”: see Airie v Ireland (1980) 2EHR 305 para 24. More specifically, “it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty”: Winterweerp v Netherlands [1979] 2 EHRR 387 para 60. P should always be given the opportunity to be joined if they wish and whether joined as a party or not must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. So long as that demanding standard is met, and in my judgment it can in principle be met without P being joined as a party, there is no need for P to be a party.”

At paragraph 20, the President added that, if P is a party to the proceedings, he or she must have a litigation friend but if participating other than as a party, there is no need for a litigation friend. The President further pointed out that a litigation friend does not have to appear by a solicitor and can conduct litigation on behalf of P, although a litigation friend who does not otherwise have a right of audience requires the permission of the court to act as an advocate on behalf of P.

On behalf of AJ, the Official Solicitor seeks a declaration that AJ was deprived of her liberty and that her rights under Article 5(4) were unlawfully violated in whole or in part of the period 21 May 2013 to 18 November 2013. He submits that the local authority should have taken the following steps to comply with its obligations under Article 5:

In reply, the local authority contends that it has fully discharged its statutory responsibilities as the supervisory body under Schedule A1 and provided a proportionate means of ensuring that AJ’s Article 5(4) rights were safeguarded by appointing Mr C as RPR in accordance with the regulations and providing him with support including the appointment of an IMCA. The local authority does not accept, in the circumstances of this case, that it should itself have started court proceedings.

I shall consider these issues under the following headings: (1) issues concerning the initial authorisation process; (2) issues concerning the RPR; (3) issues concerning the IMCA.

On behalf of the Official Solicitor representing AJ, Ms Butler-Cole submits that the local authority failed to comply with its obligations under Article 5 because the lawfulness of her deprivation of liberty was not brought before the court speedily. Counsel argues that the local authority should have sought a DOLS authorisation (or court order) authorising a deprivation of liberty on or around 17^th May 2013 when it was known that AJ was likely to be moved to a residential home against her wishes. The fact that the placement was a temporary one, for the ostensible purposes of respite, did not obviate the requirement for a DOLS assessment. The council’s failure to ensure that an authorisation was obtained before the period of deprivation of liberty started was contrary to the DOLS Code of Practice. Ms Butler-Cole relies in particular on the opening passage of Chapter 3 of the DOLS Code of Practice quoted above. In the vast majority of cases, it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins. It is only in exceptional cases, where the need for the deprivation of liberty is so urgent that it is in the best interests of the person for it to begin while the application is being considered, that a standard authorisation need not be sought before the deprivation begins. She submits that this was not such an exceptional case because the fact that a move was being contemplated was known to the local authority some weeks before it occurred. In this case, there was sufficient time for such an authorisation to be sought and obtained. There was no “emergency” in the sense identified by the ECtHR in MH v UK, supra, para 77(a).

Ms Butler-Cole submits that if, contrary to the expectations of the Act and Code, a standard authorisation cannot be obtained prior to the deprivation of liberty arising, the local authority is under an obligation to seek the court’s approval in advance of the placement where it is known that P or someone concerned in their welfare objects to the deprivation of liberty or disputes whether any of the qualifying requirements for authorisation are satisfied. It is wrong simply to wait and see whether P’s objection continues over a period of weeks or months.

Ms Butler-Cole asserts that this is not merely a technical objection. As a result of its failure to initiate the authorisation process prior to 13^th June, the local authority failed to give proper consideration as to whether or not a less restrictive option was available, for example by examining whether AJ could be provided with 24 hour care.

In his submissions in reply, Mr Dooley for the local authority contends that the local authority has discharged its statutory duty as supervising body under the Schedule A1. The local authority had commissioned the respite placement at X House having consulted with AJ’s family carers and considered the fact that they were authorised best interest decision-makers on account of their lasting power of attorney. The decision to provide interim support by way of respite was made by the local authority pursuant to its statutory duties under s.47(5) of the National Health Service and Community Care Act 1990 and not following any decision to place AJ in a care home placement. Upon AJ’s admission to X House, the managing authority had granted an urgent authorisation and the best interests assessor had subsequently completed the full assessment and recommended an standard authorisation for two weeks, and the appointment of Mr C as RPR.

It is plain from Ms B’s evidence that Mr. and Mrs. C were clearly saying before they went on holiday that they could not continue to care for AJ and that a move to permanent residential care was required. The local authority therefore knew that the move to X House was unlikely to be limited to the duration of the holiday. Furthermore, Mrs. C was completely open in telling the local authority that AJ would not move into any residential accommodation willingly. Following her telephone conversation with Mrs. C on 21^st May 2013, Ms B spoke to a DOL assessor because, as she said in her statement, “it was apparent AJ, if placed in a care home for respite, may be considered as deprived of her liberty”. Accordingly, the local authority knew or ought to have known from 21^st May, or at the latest 5^th June, that AJ would be admitted into a residential home from on or about 15^th June against her will in circumstances that were likely to amount to a deprivation of liberty.

As it was clear that AJ would not go willingly to X House, and that such a move would only be achieved by depriving her of her liberty, the local authority, prior to that move taking place, ought to have either carried out a DOLS assessment or made an application to the Court. During the first few days of her stay at X House, there was no authorisation in place, nor was there an RPR or an IMCA appointed to support her. The fact that the first two weeks of her stay at X House were nominally labelled as “respite” care cannot justify the local authority’s failure either to instigate the DOLS process or apply to the court. The local authority plainly knew that Mr. and Mrs. C would not agree to AJ returning home at the end of their holiday and that, whatever may have been said about respite care, the move was intended to be permanent from the outset.

In this case, the local authority had sufficient time to commence the process of authorisation. This case therefore fell within the “vast majority of cases” in which, as Chapter 3 of the Code of Practice recognises, “it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins”. Given the scheme of the Act is that urgent authorisations are expected to last for no more seven days save in exceptional circumstances, the local authority ought to have been able to complete the process of assessment and grant of a standard authorisation before AJ arrived at X House on 13^th June. In the alternative, given the fact that AJ’s objections to being placed in residential care were clear and well-known, the local authority could have applied straight to the Court of Protection without going through the authorisation procedure under Schedule A1. As Keehan J observed in NHS Trusts 1 and 2 v FG [2014] EWCOP 30 at paragraph 101(iii), “the mere fact that a deprivation of liberty could be authorised under Schedule A1 does not absolve [the authority] from making an application to the court where the facts would otherwise merit it”.

The consequence of the local authority’s failure to initiate the authorisation process prior to 13^th June was that there was 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.

In my judgment, it is irrelevant that the decision to provide interim support for AJ by way of respite was made by the local authority pursuant to its statutory duties under s.47(5) of the National Health Service and Community Care Act 1990. The consequence of the decision was that she, an incapacitated adult, was thereby deprived of her liberty. The local authority was therefore under an obligation to comply with Article 5 and it was unlawful under s.6 of the Human Rights Act 1998 for the authority to act in a way that was incompatible with AJ’s rights under that Article.

This seems to me to amount to a clear breach of the principles identified in the European and domestic case law. As the European Court made clear in Stanev v Bulgaria, supra, the state is obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. In this case, the local authority was in breach of that obligation by failing either to instigate the standard authorisation procedure under Schedule A1 or alternatively apply direct to the Court of Protection in advance of AJ’s admission to X House.

The second limb of the Official Solicitor’s human rights claim on behalf of AJ concerns the appointment of Mr. C as RPR. It is contended that the local authority as supervisory body ought not to have appointed Mr. C as RPR at all, or at least not without ensuring that he would bring proceedings under s.21A in the light of AJ’s known objections, or alternatively, having appointed him, replaced him when it became apparent that he was not going to facilitate a speedy review of her detention.

The provisions in the MCA concerning RPRs are found in Part 10 of Schedule A1. Paragraph 139(1) provides

“The supervisory body must appoint a person to be the relevant person’s representative as soon as practicable after a standard authorisation is given.”

Paragraph 140 provides:

“The selection of a person for appointment under paragraph 139 must not be made unless it appears to the person making the selection that 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 this Schedule, and

(c)

support the relevant person in matters relating to or connected with this Schedule”.

Paragraphs 142-6 of the Schedule authorise the making of regulations concerning the appointment of RPRs. Paragraph 143 authorises the making of regulations about the selection of RPRs, defining those persons who may be permitted by regulation to make the selection – P (if he has capacity), a donee of a LPA, a deputy, a BIA or the supervisory body – and paragraph 143(3) authorises the making of regulations that a selection by P, a donee or a deputy would be subject to approval by a BIA or a supervisory body.

The regulations passed under this power are the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008 (hereafter “the RPR Regulations”). Part 1 of the regulations concerns the selection of RPRs. Regulation 3 provides that, in addition to any requirements in regulations 6 to 9 and 11, a person can only be selected to be a representative if they satisfy certain criteria. These include being over 18, able to keep in contact with P, willing to act as P’s representative, not financially interested in P’s managing authority, nor a relative of someone so interested, nor (where as here, the managing authority is a care home) employed by or providing services to the managing authority, nor employed by the supervisory body in a role that is, or could be, related to P’s care.

Regulations 5 to 9 are central to the issues arising in this case and should be set out in full::

“5.

Selection by the relevant person

(1)

Where the best interests assessor determines that the relevant person has capacity, the relevant person may select a family member, friend or carer.

(2)

Where the relevant person does not wish to make a selection under paragraph (1), regulation 8 applies.

6.

Selection by a donee or deputy

(1)

Where

(a)

the best interests assessor determines that the relevant person lacks capacity to select a representative; and

(b)

the relevant person has a donee or deputy and the donee’s or deputy’s scope of authority permits the selection of a family member, friend or carer of the relevant person,

the donee of deputy may select such a person.

(2)

A donee or deputy may select himself or herself to be the relevant person’s representative.

(3)

Where a donee or deputy does not wish to make a selection under paragraph (1) or (2), regulation 8 applies.

Regulation 10 makes provisions for the commencement of the appointment procedure. Regulation 11, headed “Appointment of representative”, provides that “except where regulation 9 applies, a supervisory body may not appoint a representative unless the person is recommended under regulation 7 or 8.” Regulation 12, headed “Formalities of appointing a representative”, provides:

“(1)

The offer of an appointment to a representative must be made in writing and state

(a)

the duties of a representative to (i) maintain contact with the relevant person; (ii) represent the relevant person in matters relating to, or connected with, the deprivation of liberty, and (iii) support the relevant person in matters relating to, or connected with, the deprivation of liberty, and

(b)

the length of the period of appointment.

(2)

The representative must inform the supervisory body in writing that they are willing to accept the appointment and that they have understood the duties set out in sub-paragraph (1)(a).

(3)

The appointment must be for the period of the standard authorisation.

(4)

The supervisory body must send copies of the written appointment to (a) the appointed person; (b) the relevant person; (c) the relevant person’s managing authority; (d) any donee or deputy of the relevant person; (e) any IMCA appointed in accordance with ss 37 to 39D of the Act, involved in the relevant person’s case, and (f) every interested person named by the best interests assessor in their report as somebody the assessor has consulted in carrying out the assessment.”

Chapter 7 of the DOLS Code of Practice, entitled “What is the role of the Relevant Person’s Representative?” gives further guidance. Paragraph 7.2 states:

“The role of the relevant person’s representative, once appointed, is

•

to maintain contact with the relevant person, and

•

to represent and support the relevant person in all matters relating to the deprivation of liberty standards, including, if appropriate, triggering a review, using an organisation’s complaints procedure on the person’s behalf or making an application to the Court of Protection.

This is a crucial role in the deprivation of liberty process, providing the relevant person with representation and support that it independent of the commissioners and providers of the services they are receiving.”

Paragraph 7.4 stipulates that the managing authority must seek to ensure that P and the RPR understand, inter alia, their right to apply to the Court of Protection for variation or termination of the authorisation. Subsequent paragraphs reiterate and in some respects amplify the provisions as to eligibility, selection and appointment set out in the regulations. Paragraph 7.6 repeats the factors in repeats in regulation 3, saying that a person must meet them “to be eligible” to be the RPR. Paragraph 7.7 describes these factors as “the eligibility criteria”. Paragraph 7.14 says:

“It is up to the best interests assessor to confirm whether any representative proposed by the relevant person, a donee or a deputy is eligible. If the best interests assess decides that a proposed representative is not eligible, they must advise the person who made the selection and invite them to make a further selection.”

Paragraph 7.15 states:

“If neither the relevant person, nor a donee or deputy, selects an eligible person, then the best interests assessor must consider whether they are able to identify someone eligible who could act as the relevant person’s representative.”

Paragraph 7.16 gives further guidance to the best interests assessor in the event that neither P nor a donee nor deputy selects someone as RPR.

“In making a recommendation, the assessor should consider, and balance, factors such as:

•

Does the relevant person have a preference?

•

If they do not have the capacity to express a preference now, is there any written statement made by the relevant person when they had capacity that indicates who they may now want to be their representative?

•

Will the proposed representative be able to keep in contact with the relevant person?

•

Does the relevant person appear to trust and feel comfortable with the proposed representative?

•

Would the proposed representative be able to represent the relevant person effectively?

•

Is the proposed representative likely to represent the relevant person’s best interests?”

Paragraph 7.17 adds: “It should not be assumed that the representative needs to be someone who supports the deprivation of liberty.”.

Paragraphs 7.25 to 7.28 give guidance as to the support and monitoring of the RPR. The onus is put on the managing authority of the residential home, in the first instance, to monitor the level of contact between the RPR and P, and inform the supervisory body if the level of contact is not appropriate.

The form headed “Selection of a Representative” was completed by Ms G and stated that the selection of Mr. C as RPR was made by the donees of the LPA. The evidence, however, gives a slightly different picture. In her statement, Ms G explained that, when she had asked AJ who she would like to represent her, for example in an appeal to the Court, AJ had told her to speak to Mr. C. In her assessment, Mr. C met the statutory criteria for appointment, and appeared to have a good grasp of the role and responsibilities, including the need to keep in contact with AJ and to support and represent AJ in all matters relating to the DOLS. Her statement continues:

“I spoke to him at length about the importance of an appeal and the RPR’s role in making an application to the Court of Protection. Mr. C advised me that he understood the responsibilities of the RPR and would approach the Court if he were asked to, either directly by AJ or if he felt this were necessary. He told me he understood the role, and also the conflict that he and others must face where the RPR’s wish to protect a loved one sits in incongruity with the relevant person’s wish for liberty. To support him as RPR, I suggested that in [this county] BIAs would automatically appoint an IMCA-39D [to] help in managing this tension. When I asked Mr. C if he would accept IMCA support, he readily agreed, telling me that this would be helpful to him.”

When seen by Ms G in the July 2013, in the course of her second best interests assessment, Mr. and Mrs. C gave further details of the difficulties they had experienced trying to care for AJ at home, and suggested that the move to Y House would provide her with the skilled care she needed. When Ms G saw AJ, however, she continued to insist that she could look after herself and objected strongly to her admission to Y House. Ms G spoke again to Mr. C about his position as RPR, and he reiterated that he understood the role including the need to consider complaint and appeal, and that he was keen to have the support of an IMCA to advise him in his role as RPR.

In the course of carrying out her third best interests assessment in August 2013, Ms G spoke for the first time to Mr. R. He told her that he had yet to make contact with Mr. C, and Ms G says that she advised him that Mr. C was keen to discuss his role as RPR as soon as possible. Mr. R accompanied Ms G to her meeting with AJ at Y House. AJ was consistent in her view that she could look after herself and her objection to being admitted to Y House, but, according to Ms G’s statement, when asked if she wished to appeal,

“she declined this, asking instead to speak to Mr. and Mrs. C first. AJ did not appear to understand the relevant information about the appeal process, and specifically that she is subject to DOLS.”

In the course of this assessment, AJ raised no objection to Mr C acting as her RPR, and declined the suggestion of someone independent acting in that role, although Ms G formed the view that AJ lacked the capacity to decide on his role at that time. According to Ms G, Mr. R did not raise any concerns or objections about the selection of Mr. C as RPR. He advised her that he was ‘not sure’ if he would pursue any appeal for AJ at this time, stating that he would need to meet with AJ again to discuss her views and also to consult with her RPR. In an addendum statement, Ms G gave further detail about this conversation. When she asked Mr. R what he was uncertain about, he replied that it was not uncommon for many older people in care to state a desire to return home and that judgments about any appeal were difficult for IMCAs when it is apparent that the person requires residential care. According to Ms G, Mr. R then acknowledged that the strength of AJ’s objection indicated a need to pursue some action and that he would wish to speak to the RPR about this. When Ms G spoke to Mr. C again, he told her that his and his wife’s views were unchanged. He said he was still willing to act as RPR, although he had yet to speak to the IMCA and was keen to do so to discuss the support available to him in his role as RPR.

In oral evidence, Ms G confirmed that she knew from the outset that AJ objected to being in care, but that she was adamant that she didn’t want to use her right to appeal. She wanted nothing to do with lawyers, but rather wanted Mr. and Mrs C to do what they could to get her out.

In their initial joint statement in these proceedings, in response to the assertion by the Official Solicitor that the local authority should not have appointed Mr. C as the RPR, Mr. and Mrs. C commented as follows:

“… while [Mr. C] does not have a view on whether this was a correct or incorrect decision, the reasons for not assisting the appellant to exercise her right to review by the court was because he was aware of the complete background to the case, the extensive medical professional involvement and the outcome of a multi-disciplinary best interests meeting; the conclusions of all being that AJ required significant care despite her likely objection. Although [Mr. and Mrs C] absolutely agree to the right of an individual to challenge any deprivation of liberty, it would appear that bringing this case gave no consideration to the personal medical needs of AJ but rather based itself upon the view of an individual who had no knowledge of AJ and has visited her on only four occasions. Indeed, [Mr. and Mrs C] stated from the very outset that AJ would object to being in care but it would appear that these considerations were not given credence.”

In a further statement, Mr. C stated that Ms G asked if he would be willing to act as RPR and explained that it would be his responsibility to arrange representation for AJ if she decided she wanted to go to court. He said that he immediately recognised that there was a potential conflict of interest as he had been a party to the decision resulting in her placement in the home in her best interests. He said that he raised this at the outset and Ms G indicated that she would immediately arrange for the appointment of an IMCA.

Thereafter, Mr C went to see AJ on several occasions. She consistently told him, and others, that she wanted to leave Y House and go home. It is Mr. C’s evidence, however, that when he explained to her that it would be necessary for her to apply to the court and asked her whether she wanted him to arrange this, she consistently said that she did not wish to involve the court. In his statement, Mr. C said that no one told him that he should be seeking to issue an application for AJ notwithstanding her wish not to go through the court process, and that it never occurred to him to make an application against her wishes. In oral evidence, he said that no one had told him that AJ would be entitled to non-means-tested legal aid to appeal under s.21A.

In oral evidence, Mr. C reiterated that when asked AJ had said that she did not want to involve the court. He frankly acknowledged, however, that if he had asked her “do you want me to do what I can to get you home?” she would have answered yes, but he never phrased the question that way. He said that he did not object to the IMCA instigating proceedings, adding “he came to it from a single point of view – her desire not to be in care – without our understanding of why she had gone into care in the first place.” Mr C said he could not see what an appeal to the Court would generate for AJ.

The Official Solicitor contends that the local authority as supervisory body ought not to have appointed Mr. C as RPR at all, or at least not without ensuring that he would bring proceedings under s.21A in the light of AJ’s known objections, or alternatively, having appointed him, replaced him when it became apparent that he was not going to facilitate a speedy review of her detention. The local authority, however, rejects these arguments, contending that it did all that could reasonably have been expected in appointing Mr. C to the role. Mr. Dooley submits that it was not open to the local authority as supervisory body to refuse to appoint Mr. C as RPR. He argues that, although the supervisory body appoints the RPR, its power to select the RPR is confined to the circumstances defined in regulation 9 – that is to say, it only arises if the RPR has not been selected under regulations 5 to 8 by the relevant person, or a donee under a LPA, or a deputy, or the BIA. Mr. Dooley submits that, if a RPR is selected under one of those regulations, the supervisory body is under a duty to appoint that person. In those circumstances, he contends that the decision to appoint Mr. C was one which the supervisory body was required to make by the statutory provisions.

It is necessary, first, to consider the powers and duties of the BIA when selecting someone to act as RPR, and the powers and duties of the supervisory body in making the appointment. The interpretation of the complex provisions set out above have evolved in the course of initial written submissions, through oral submissions, supplemental written submissions and finally in answer to a specific question posed by me in writing as to the meaning of the word “eligible” in the RPR regulations.

The Official Solicitor submits that, in order for a person to be selected and appointed as RPR by the supervisory body, he or she must fulfil not only all the specific criteria set out in regulation 3(1) (a) to (h) of the RPR regulations but also meet the requirements set out in paragraph 140 of Schedule A1. When selecting the RPR, the person making the selection must be satisfied not only under regulation 3 that, as a matter of fact, the person under consideration is over 18, able to keep in contact with P, willing to act as P’s representative, not financially interested in P’s managing authority, nor a relative of someone so interested, nor (where as here, the managing authority is a care home) employed by or providing services to the managing authority, nor employed by the supervisory body in a role that is, or could be, related to P’s care. In addition, the person making the selection must, under paragraph 140 of the Schedule, make a judgment as to whether the person under consideration for appointment would maintain contact with P, represent P in matters relating to or connected with this Schedule, and support P in matters relating to or connected with this Schedule. Invited by the Court to define the meaning of the words “eligible” and “eligibility” in the regulations, the Official Solicitor argued that they encompass not only the factors listed in regulation 3 but also the requirements of paragraph 140. In support of this interpretation, Ms Butler-Cole drew attention to the terms of regulation 7(2) which stipulate that, where the BIA confirms the selected person’s eligibility, he or she must recommend that person for appointment to the supervisory body. As paragraph 140 provides that the selection must not be made unless it appears to the person making the selection that the prospective representative would comply with the requirements of that paragraph, those requirements must be included within the meaning of “eligibility” in regulation 7(2).

Ms Butler-Cole points out that paragraph 140 is part of Schedule A1 itself and therefore part of primary legislation. Whoever is making the selection of the RPR, whether it be the BIA under regulation 8 or the supervisory body under regulation 9, (or indeed P himself under regulation 6 or a donee under an LPA under regulation 6) that person is bound by paragraph 140. Ms Butler-Cole interpreted the evidence as indicating that Ms G made the selection herself. She was not merely confirming Mr. C’s self-selection. Whoever was making the selection, whether it was Mr. C or Ms G herself, the intention behind regulations 7 and 8 is to ensure that the BIA provides an independent check on the proposed RPR, including by ensuring that the provisions of paragraph 140 of the Schedule are satisfied.

Furthermore, Ms Butler-Cole submits that the local authority ought not to have appointed Mr. C as RPR notwithstanding the fact that he was selected by the BIA. Having regard to the requirement to ensure that incapacitated adults are assisted to exercise their Article 5(4) rights – both by reference to the European jurisprudence and the very purpose of RPRs within the DOLS framework – it would risk violating the Convention to select, confirm or appoint an RPR who did not meet the paragraph 140 criteria. As a result, the supervisory body is required to apply its mind as to whether those criteria are satisfied prior to appointing the RPR.

Furthermore, Ms Butler-Cole submits that it is not relevant that Mr C may have acted in AJ’s best interests in discharging his role as RPR. Article 5 (4) gives AJ an unqualified right of access to the court. There is no place in Article 5(4) for a best interests decision about the exercise of that right since that would potentially prevent the involvement of the court. The decision to exercise a right to bring proceedings cannot be a best interests decision. As Baroness Hale of Richmond observed in Cheshire West (at paragraph 36), “the whole point about human rights is their universal character”.

In his response, Mr. Dooley on behalf of the local authority reminds me that “eligible” is defined in the Shorter Oxford English Dictionary as “fit or entitled to be chosen for a position”. Paragraphs 142 to 146 of Schedule A1 to the Act provide for regulations including the objective criteria for selection of RPRs and the local authority therefore submits that the eligibility criteria are those laid down in regulations 1 to 3 of the RPR regulations made under the statutory powers set out in those paragraphs. Mr Dooley submits that the provisions of paragraph 140 are not part of the eligibility criteria but, rather, require the person making the selection to make a judgment as to what the prospective RPR would do if appointed. These “expectations”, (as Mr. Dooley describes them), that the RPR will maintain contact with, represent and support P in matters relating to or connected with Schedule A1, are set out in general terms and, submits Mr. Dooley, reflect the intention of Parliament that the RPR should be a friend or relative prepared to assist P, rather than a professional. Accordingly, Mr Dooley submits that Mr. C was “eligible” for selection and the donees were entitled to select him as RPR. The donees were the decision-maker as to selecting the person for appointment as the RPR. Given the BIA’s capacity assessment, Mr. C took on the role of RPR in accordance with the Regulations, having regard to AJ’s expressed wishes

It is the local authority’s case that the power to appoint is in fact a duty placed upon the supervisory body and is wholly dependent upon the selection made beforehand. Mr Dooley submits that this is reflected in the structure of the regulations, and in particular in the first sentence of paragraph 140. It is submitted that when read in conjunction with the Regulations that sets out the selection process for the RPR and in the context of the legislator’s stated intention, the supervisory body’s decision to appoint Mr C as RPR following the best interests assessment was the decision it was required to make by the relevant statutory provision.

As described above, the form headed “Selection of a Representative” was completed by Ms G in terms that asserted that the selection of Mr. C as RPR was made by the donees of the LPA, but the evidence plainly shows, however, that the selection of Mr. C to act as AJ’s RPR was made by Ms G. There is nothing in the evidence to indicate whether or not she drew Mr and Mrs. C’s attention to the fact that, under regulation 6(1)(b), the donee under an LPA may select the RPR if the scope of the donee’s authority permits them to select a family member, friend or carer of P, including the donee himself or herself. Under regulation 8(2), the BIA may only make a selection in certain circumstances, namely where P has the capacity to make a selection under regulation 5(1) but does not wish to do so, or where P’s donee or deputy does not wish to make a selection under regulation 6(1) or (2), or where P lacks the capacity to make a selection and (i) does not have a donee or deputy, or (ii) has a donee or deputy but the donee’s or deputy’s scope of authority does not permit the selection of a representative. In this case, P lacked capacity to make a decision, and there is no evidence that Ms G asked Mr. C whether he wished to select the RPR, or that any consideration was given as to whether the scope of the donees’ authority under the LPA executed by AJ permitted them to select the RPR.

Even if Ms G was entitled to select the RPR, she was in my judgment not entitled to select Mr. C because he was not eligible. Alternatively, if the reality is, as indicated on the face of the form headed “Selection of a Representative”, that the donees under the LPA (i.e. Mr. and Mrs. C) made the selection, Ms G when complying with regulation 7 ought to have refused to confirm that Mr. C was eligible. I accept the Official Solicitor’s submissions as to the meaning of “eligible” and “eligibility” in the regulations. In my judgment, they encompass the requirements not only of regulation 3 but also of paragraph 140 of Schedule A1. I acknowledge that paragraphs 7.7 to 7.9 of the DOLS Code of Practice refers to the regulation 3 factors as the eligibility criteria. But Paragraph 140, which is a statutory provision, is in mandatory terms. The selection must not be made unless it appears to the person making it that the prospective RPR would maintain contact with P and would represent and support P in matters relating to the Schedule. I am not persuaded by Mr. Dooley’s characterisation of the provisions of paragraph 140 as setting out “expectations”. In my judgment, they are part of the eligibility criteria.

Thus for example, it is not enough for the person making the selection to be satisfied, as required by regulation 3(1)(b), that the person under consideration “is able to keep in contact with P”. The person making the selection must also be satisfied, as required by paragraph 140(a), that the person under consideration “would, if appointed, maintain contact with P”. Of particular relevance for this case, it is not enough for the person making the selection to be satisfied, as required by regulation 3(1)(c), that the person under consideration is “willing to be the relevant person’s representative”. The person making the selection must also be satisfied, as required by paragraph 140 (b) and (c), that the person under consideration “would, if appointed ….represent the relevant person in matters relating to or connected with this Schedule and … support the relevant person in matters relating to or connected with this Schedule”. The phrase “matters relating to or connected with this Schedule” must to my mind include, inter alia, challenging any authorisation granted under the Schedule.

As I read the DOLS Code of Practice, this interpretation is consistent with the provisions therein, and in particular paragraphs 7.13 to 7.16 and with the European case law, in particular Shtukatarov v Russia, supra.

The evidence manifestly demonstrates that Mr. C was unwilling or at least very reluctant 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. As he frankly said in his statement as quoted above, his “reasons for not assisting the appellant to exercise her right to review by the court was because he was aware of the complete background to the case, the extensive medical professional involvement and the outcome of a multi-disciplinary best interests meeting; the conclusions of all being that AJ required significant care despite her likely objection.” I accept Mr. C’s evidence that he immediately recognised that there was a potential conflict of interest as he had been a party to the decision resulting in AJ’s placement in the home because he considered this to be in her best interests. I accept his evidence that he raised this at the outset and that in response Ms G indicted that she would immediately arrange for the appointment of an IMCA. In my judgment, however, the appointment of an IMCA cannot overcome the ineligibility of the RPR.

Mr. Dooley is correct in saying that the scheme of the Act and regulations is that the appointment of a friend or relative as RPR is to be preferred. But this preference, which can legitimately be called an “expectation”, must yield to the overarching requirement that the person selected is eligible in the sense already explained, namely satisfying the criteria in regulation 3 and paragraph 140 of the Schedule.

I further accept the Official Solicitor’s submission that that the local authority ought not to have appointed Mr. C as RPR notwithstanding the fact that he was selected by the BIA. The European and domestic case law make it clear that there is a positive duty on public authorities under the Convention to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court, to ensure that a mentally incapacitated adult is afforded independent representation, enabling them to have their Convention complaints examined before a court or other independent body, and not to permit access to a court to be dependent on the exercise of discretion by a third party who supports the deprivation of liberty. As the President has made clear in of Re X and Others (Deprivation of Liberty) [2014], it is not always necessary for P to be joined as a party to any proceedings, but the state is under a clear duty to ensure that he or she is able to challenge a deprivation of liberty in a process that is judicial, accessible and independent of the detaining authority. To my mind, these obligations impose on the local authority as supervisory body a duty to scrutinise the prospective RPR selected under regulations 5 to 8 before making the appointment. I do not accept Mr. Dooley’s submission that it was not open to the local authority as supervisory body to refuse to appoint Mr. C as RPR. The fact that, under regulation 11, a supervisory body may not (except where regulation 9 applies) appoint a RPR unless the person is recommended by a BIA under regulation 7 or 8 does not mean that it is obliged to appoint a person who is so recommended. Where a supervisory body has reason to believe that the person selected as RPR will not comply with the obligations under paragraph 140 of the Schedule, its duties under Article 5 compel it to refer the matter back to the BIA.

In this case, Mrs C made it clear to the social workers on several occasions that she and her husband believed that it was in AJ’s best interests to move into residential care. At the best interests meeting on 25^th June 2013, which took place a few days before Ms G selected Mr. C to act as RPR, Mr. and Mrs. C informed the meeting that they knew that AJ would not want to go into residential care but that they felt this was the best option. The local authority ought to have known that Mr. C, given his firm view that a residential placement would be in her best interests, would have difficulty representing and supporting AJ in matters relating to or connected with Schedule A1, specifically in connection with any review of or challenge to an authorisation granted under the Schedule.

Furthermore, the fact that there was a consensus amongst professionals and Mr. and Mrs. C that it was in AJ’s best interests to go into residential care was irrelevant to the obligation to ensure that she was able to exercise her Article 5(4) rights. European and domestic case law make it clear that an applicant is not required, as a precondition of enjoying the protection of Article 5, to show that on the facts of her case she stands any particular chance of success in obtaining his release: Waite v UK, supra, para 59. As Ms Butler-Cole puts it, Article 5(4) gives AJ an unqualified right of access to the court so there is no place in Article 5(4) for a best interests decision about the exercise of that right since that would potentially prevent the involvement of the court when, in Baroness Hale’s words, “the whole point about human rights is their universal character”. Indeed, it could be argued that the greater the consensus amongst professionals and relatives, the more the supervisory body needs to be on its guard to ensure that P’s Article 5(4) rights are respected.

Confirmation that the local authority is under a duty to satisfy itself that the person selected for appointment is eligible to be an RPR is found in the provisions governing the termination of the appointment in regulation 13. Under regulation 13(h), “a person ceases to be a representative if … the supervisory body terminates the appointment because it is satisfied that the representative is no longer eligible or was not eligible at the time of appointment to be a representative”. The guidance in the DOLS Code of Practice suggests that the obligation to monitor the performance of the RPR falls on the managing authority of the residential home. This does not, however, obviate the need for the supervisory body to satisfy itself that the RPR is eligible to be the RPR prior to appointment, and once appointed remains eligible throughout the term of the appointment.

Having (in my judgment wrongly) appointed Mr. C as RPR, the local authority as the supervisory body ought to have quickly realised (1) that AJ was extremely unhappy in residential care and wished to challenge the authorisations and (2) that Mr. C was not taking any or any sufficient steps to represent or support her in pursuing that challenge. The local authority should therefore have taken steps to replace Mr C as RPR when it became apparent that he was not intending to issue proceedings promptly and that there was not going to be a speedy review of AJ’s detention by a court, since s.21A proceedings must be brought very promptly to ensure compliance with Article 5(4).

I therefore conclude (1) that Mr. C should not have been selected or confirmed by the BIA for appointment as RPR, (2) that, having been selected, he should not have been appointed, and (3) that, having been appointed, his appointment should have been terminated when it became clear that he was not taking any or any sufficient steps to represent and support AJ in a key matter relating or connected to Schedule A1, namely a challenge to the authorisation granted under the Schedule

Although Mr. R was appointed as IMCA under s.39D of the Act, the Official Solicitor raises the question whether on the facts of this case the local authority was in fact under an obligation to appoint an IMCA at all. Even if, however, it was not under an obligation to appoint an IMCA, the Official Solicitor submits that the local authority should have nevertheless taken steps to assist AJ in exercising her rights. He further submits that, having rightly or wrongly appointed an IMCA, it remained under an obligation to monitor how the IMCA was acting in furtherance of those rights, and should have ensured that funds were available to enable the IMCA to obtain legal advice and act as litigation friend

Through Mr. Dooley, the local authority contends that, in hindsight, there was no obligation to appoint an IMCA in this case. In practice, however, an IMCA had been appointed and Mr Dooley submits that he could and should have progressed and appealed to the court on behalf of AJ before November 2013. The fact that he had failed to do so was not the responsibility of the local authority.

In order to analyse this aspect of the case, it is necessary to consider at some length a number of issues concerning the statutory provisions and regulations governing IMCAs. In particular, the following questions arise. (1) In what circumstances does the duty to appoint an IMCA under section 39D arise? (2) Did that duty arise in this case? (3) Did the appointment of the IMCA absolve the local authority from further responsibility to ensure that AJ’s rights under Article 5(4) were respected?

The provisions governing IMCAs are set out in section 35 to 41 of the MCA. Section 35(1) and (2) (as amended) provide:

“(1)

The responsible authority must make arrangements as it considers reasonable to enable persons (“independent mental capacity advocates”) to be available to represent and support persons to whom acts or decisions proposed under section 37, 38 and 39 relate or persons who fall within sections 39A, 39C or 39D.

(2)

The appropriate authority may make regulations as to the appointment of independent mental capacity advocates. ”

Section 36(1) enables the passing of regulations as to the functions of IMCAs. Section 36(2) stipulates what such regulations may cover, including requiring an advocates to take such steps as may be prescribed for the purpose of providing support to P so that he may participate as fully as possible in any relevant decision. The regulations passed under section 35(2) and section 36(1) are the Mental Capacity Act 2005 (Independent Mental Capacity Advocates General) Regulations 2006.

Under the scheme of the MCA as originally passed, IMCAs were appointed in cases where it was proposed that P would receive serious medical treatment (section 37), or accommodated in an NHS or care home (section 38), or by a local authority in residential accommodation (section 39), and where in any of those cases there was no one else, other than someone caring or treating P in a professional capacity, whom it would be appropriate to consult in determining what would be in P’s best interests.

The circumstances in which an IMCA could be appointed were significantly expanded by amendments to the MCA added in 2007 as part of the scheme of the DOLS. These amendments were set out in sections 39A to 39E which make provision for the appointment of IMCAs in three additional circumstances. The first circumstance is set out in section 39A(3) requiring the appointment of an IMCA where P becomes “subject to schedule A1” (as defined in section 39B) and the managing authority is satisfied that there is no other person (other than someone caring or treating that person professionally or for remuneration) whom it would be appropriate to consult in determining what would be in P’s best interests. Section 39A(5) provides that the section is subject to paragraph 161 of schedule A1, which provides that the duties and powers of an IMCA appointed under this section shall not apply when a RPR is appointed (save for certain specific powers to challenge the standard authorisation under section 21A). The second circumstance is set out in section 39C(3) which requires the appointment of an IMCA when an authorisation under schedule A1 is in force, the appointment of a RPR comes to an end and the managing authority is satisfied that the there is no other person (other than someone caring or treating that person professionally or for remuneration) who it would be appropriate to consult in determining what would be in P’s best interests. Section 39C(5) provides that an appointment of an IMCA under this section ends when a new RPR is appointed. Thus the scheme of both section 39A and 39C is to provide for the temporary appointment of an IMCA pending the appointment of a RPR.

The third additional circumstance is set out in section 39D, headed “Person subject to Schedule A1 without paid representative”:

“(1)

This section applies if—

(a)

an authorisation under Schedule A1 is in force in relation to a person (“P”),

(b)

P has a representative (“R”) appointed under Part 10 of Schedule A1, and

(c)

R is not being paid under regulations under Part 10 of Schedule A1 for acting as P's representative.

(2)

The supervisory body must instruct an independent mental capacity advocate to represent P in any of the following cases.

(3)

The first case is where P makes a request to the supervisory body to instruct an advocate.

(4)

The second case is where R makes a request to the supervisory body to instruct an advocate.

(5)

The third case is where the supervisory body has reason to believe one or more of the following—

(a)

that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights;

(b)

that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it;

(c)

that P and R are each unlikely to exercise a relevant right when it would be reasonable to exercise it.

(6)

The duty in subsection (2) is subject to section 39E.

(7)

If an advocate is appointed under this section, the advocate is, in particular, to take such steps as are practicable to help P and R to understand the following matters—

(a)

the effect of the authorization;

(b)

the purpose of the authorization;

(c)

the duration of the authorization;

(d)

any conditions to which the authorization is subject;

(e)

the reasons why each assessor who carried out an assessment in connection with the request for the authorization, or in connection with a review of the authorization, decided that P met the qualifying requirement in question;

(f)

the relevant rights;

(g)

how to exercise the relevant rights.

(8)

The advocate is, in particular, to take such steps as are practicable to help P or R—

(a)

to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right, or

(b)

to exercise the right of review, if it appears to the advocate that P or R wishes to exercise that right.

(9)

If the advocate helps P or R to exercise the right of review—

(a)

the advocate may make submissions to the supervisory body on the question of whether a qualifying requirement is reviewable;

(b)

the advocate may give information, or make submissions, to any assessor carrying out a review assessment.

(10)

In this section—

‘relevant rights’ means—

(a)

the right to apply to court, and

(b)

the right of review;

'right to apply to court’ means the right to make an application to the court to exercise its jurisdiction under section 21A;

‘right of review’ means the right under Part 8 of Schedule A1 to request a review.”

It is important to note that, unlike the other circumstances in which a duty to appoint an IMCA arises under section 37, 38, 39, 39A and 39C, the trigger for the appointment is not expressed as being the fact that there is no other person who it would be appropriate to consult in determining what would be in P’s best interests. It should also be noted that, in contrast to the appointment of an IMCA under section 39A or 39C, which are designed to be temporary pending the appointment of a RPR, the appointment of an IMCA under s39D is designed to provide advocacy assistance alongside the appointment of an unpaid RPR.

Section 39D is followed by section 39E which, despite its heading (“Limitation on duty to instruct advocate under section 39D”) is not relevant to the current case as it concerns circumstances where P requests the appointment of a second IMCA under section 39D. The following section, section 40, is relevant. Headed “Exceptions”, it sets out certain circumstances in which the duties to appoint an IMCA under the previous sections do not apply. Section 40 was included in the original 2005 Act but amended by the 2007 Act. For reasons that will become clear below, I set out the original provisions as well as those under the amended and current version. As originally drafted, it read:

“Sections 37(3), 38(3) and (4) and 39(4) and (5) do not apply if there is

(a)

a person nominated by P (in whatever manner) as a person to be consulted in matters affecting his interests;

(b)

a donee of a lasting power of attorney created by P;

(c)

a deputy appointed by the court for P, or

(d)

a donee of an enduring power of attorney (within the meaning of Schedule 4) created by P.”

As drafted under the amendment, the section now reads:

“(1)

The duty imposed by section 37(3), 38(3) or 39(4) or 39A(3), 39C(3) or 39D(2) does not apply where there is -

(a)

a person nominated by P (in whatever manner) as a person to be consulted on matters to which that duty relates,

(b)

a donee of a lasting power of attorney created by P who is authorized to make decisions in relation to those matters, or

(c)

a deputy appointed by the court for P with power to make decisions in relation to those matters

(2)

A person appointed under Part 10 of Schedule A1 to be P’s representative is not, by virtue of that appointment, a person nominated by P as a person to be consulted in matters to which a duty mentioned in subsection (1) relates.”

It will be seen that the effect of the amendment was, first, to insert the new statutory duties under section 39A to D within the exceptions set out in section 40, but, secondly, to narrow the scope of those exceptions.

When considering the oral and written submissions presented by the applicants in this case, I became aware of a possible ambiguity in terms of the amended section 40. What is meant by the phrase “matters to which that duty relates” in section 40(1)(a) and the linked phrase “those matters” in section 40 (1) (b) and (c)? As pointed out above, the trigger for the appointment of an IMCA in sections 37, 38, 39, 39A and 39C is the absence of any other person who it is appropriate to consult in determining what would be in P’s best interests. In contrast, the duty to instruct an IMCA under section 39D arises in different circumstances as set out above. I therefore asked the advocates for further written submissions as to the meaning of these phrases.

On behalf of the Official Solicitor, Ms Butler-Cole stated that the answer to the question posed must be identified having regard to the need to interpret section 40 compatibly with the ECHR and, in particular, Article 5(4). She submitted that section 39D IMCAs are not solely concerned with the exercise of “relevant rights” (as defined in section 39D(10)), although all section 39D IMCAs have an express duty to support P and the RPR to exercise these relevant rights. She submitted that the “matters” to which the duty to appoint an IMCA under section 39D(2) relates are the determination of P’s best interests, as for the other IMCAs listed in section 40. She submitted that section 39D IMCAs “are still IMCAs and do have general duties to represent and support P, in addition to the particular duties concerning the exercise of relevant rights”. However, Ms Butler-Cole stressed that the decision whether to exercise the relevant right on P’s behalf is not a best interests decision, since it would not be consistent with the European jurisprudence for access to the court under Article 5(4) to be dependent on a substituted best interests decision.

On behalf of the local authority, Mr. Dooley submitted that the particular functions under section 39D address any deficits in the Article 5(4) safeguards by supporting P and an RPR to access the right of review and challenge, specifically by helping them understand the matters referred to in section 39D(7)(a) to (h) and under section 39D(8) helping them to exercise those rights. He reminded the court that the intention of Parliament was to provide the necessary safeguards for P without usurping the role of family members or carers.

Both Mr. Dooley and Ms Butler-Cole contended that an IMCA appointed under s.39D was, in addition to the specific functions set out in s.39D(7), (8) and (9), under a general duty to represent and support P. Although they agree that the IMCA was under such a duty, they do not agree as to the provenance of that duty.

As already stated, the regulations passed under s.35(2) and s.36(1) of the MCA are the Mental Capacity Act 2005 (Independent Mental Capacity Advocates General) Regulations 2006. The functions of those IMCAs within the scope of the regulations are set out in regulation 6 and include, in regulation 6(3), a provision that “the IMCA must determine in all the circumstances how best to represent and support P.” These regulations were made prior to the amendments to the Act made in 2007 which established the DOLS regime and introduced the new sections 39A to E. On behalf of the local authority, Mr. Dooley submitted that the general functions under those regulations apply not only to IMCAs appointed under the original provisions in sections 37 to 39 but also those appointed under the amended provisions set out in sections 38A to D. Ms Butler-Cole, on the other hand, submitted that the 2006 regulations do not apply to section 39A, C or D IMCAs. She pointed out that the regulations are couched in terms indicating that they only apply to IMCAs appointed under the original provisions and were not amended when sections 39A to D were introduced. Thus regulation 2(2) provides:

“In these regulations, references to instructions given to a person to act as an IMCA are to instructions given under sections 37 to 39 of the Act or under regulations made by virtue of section 41 of the Act.”

Furthermore, regulation 6, which sets out the functions of an IMCA, including the duty to determine in all the circumstances how best to represent and support P, is limited by regulation 6(1) and (2) to cases where an IMCA has been instructed by a person who is required or enabled to instruct an IMCA under sections 37 to 39, or by regulations made under section 41. (Section 41 enables the making of regulations to expand the role of IMCAs. Regulations have been made pursuant to this power but are not relevant to the present case.)

Ms Butler-Cole did not, therefore, base her argument about the existence of a general duty on IMCAs on the terms of the 2006 regulations. Instead, she argued that section 39D IMCAs “are IMCAs, whose general function is to represent and support P as set out in the definition of an IMCA in section 35(1)”.

On this point, I accept Ms Butler-Cole’s first submission but not her second. I agree with her interpretation of the 2006 regulations. The terms of the regulations make it clear that they do not apply to IMCAs appointed under section 39A to D. In particular, the provisions as to the functions to be carried out by IMCAs as set out in the regulations do not extend to IMCAs appointed under sections 39A to D. On the other hand, I do not accept Ms Butler-Cole’s submission that section 35(1) imposes any general duty upon IMCAs which extends to all IMCAs including those appointed under sections 39A to D. Section 35(1) is simply a provision which requires authorities to make arrangements for the appointment of IMCAs. I do not read the terms of section 35(1) as amounting to a definition of the duties, powers, or functions of IMCAs.

In my judgment, 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).

Having reached that conclusion, I turn back to section 40. I can find no reference to the interpretation of the amended section 40 in the voluminous guidance set out in either the MCA Code of Practice or the DOLS Code of Practice. The MCA Code, which gives considerable guidance on the scope and interpretation of the original provisions concerning IMCAs in sections 37 to 39, has not been amended to give any guidance as to the interpretation of sections 39A to E and, so far as I can see, the DOLS Code does not address the issues under consideration here. The only steer, as helpfully pointed out by Mr. Dooley, is in the Explanatory Notes to the Mental Health Act 2007 which provides (in paragraphs 192 and 193):

“192.

Under the MCA an independent mental capacity advocate (IMCA) must be appointed in specified situations to support and represent particularly vulnerable people who have no family or friends or others whom it would be appropriate to consult. Sections 40 of the MCA provides some limited exceptions to the requirement to appoint an IMCA in these circumstances.

193.

Section 49 [of the Mental Health Act 2007] substitutes a new version of section 40, to limit the exceptions to the duty to instruct an IMCA. The amendment ensures that there will still be a duty to instruct an IMCA (for health and social care issues) for someone who lacks capacity even if they have someone to represent them on different issues, for example financial issues. There is no such duty if they already have someone to represent them on the same issue.”

It is notable that, under the original version of section 40, the duty to appoint an IMCA under sections 37 to 39 did not apply at all where there was a donee of an LPA. Under the amended version, the duty to appoint an IMCA under sections 37 to 39D does not apply where there is a donee of a lasting power of attorney created by P who is authorised to make decisions in relation to those matters. By narrowing the scope of the exceptions to the duty to instruct an IMCA, the amended version of section 40 reinforced the protection given to incapacitated persons, inter alia in respect of their Article 5(4) rights.

In my judgment, the matters to which a duty to appoint an IMCA under section 39D relates are not “determining what would be in P’s best interests”. As already pointed out, this phrase is included in section 37, 38, 39, 39A and 39C but notably absent from section 39D. I do not regard this as an oversight by the Parliamentary draftsmen. I conclude that the matters to which the appointment of an IMCA under section 39D relates are those set out in section 39D(7) and (8), that is to say helping P and the RPR to understand the matters listed in subsection (7) (namely specific aspects of the Schedule A1 authorisation process, the reasons why a BIA had decided that P has met the qualifying requirements, the relevant rights to apply to the court and for review and how to exercise them) and, under subsection (8), if it appears to the advocate that P or the RPR wishes to exercise either of the relevant rights, taking such steps as are practicable to help him or her do so.

Accordingly, I conclude that, where P has executed a LPA, the duty to appoint an IMCA under section 39D is not excluded under section 40(1)(b) unless the donee of the LPA is authorised to make decisions in relation to the matters in section 39D(7) and (8).

Did the duty to appoint an IMCA arise here?

The supervisory body would be under a duty under section 39D(2) to appoint an IMCA if any of the three cases in section 39D(3), (4), or (5) arose, unless the donee of either of the LPAs executed by AJ was authorized by the LPA to make decisions in relation to the matters to which that duty related.

A lasting power of attorney was executed in this case in respect of both health and welfare and property and financial affairs, naming Mr. and Mrs. C as donees. The LPAs were registered on 29^th May 2013. Under the original version of section 40, this would have been sufficient to exclude any statutory duty to appoint an IMCA. Under the amended section 40, the duty is only excluded if the donee of the LPA is authorised to make decisions in relation to the matters in section 39D(7) and (8).

Here, both LPAs were set out in standard terms with no restrictions. Neither LPA make any reference to the relevant rights in section 39D, or to decisions concerning those rights. In my judgment, the power given under a standard form LPA giving donees the power to make decisions concerning health and welfare or property and financial affairs do not include the power to make decisions relating to the matters to which the duty under section 39D(2) relates. The exercise of those rights concerning the deprivation of liberty is not a decision relating to welfare. I accept Ms Butler-Cole’s submission that the statutory provisions and individual instruments must be interpreted in a way which is compatible with ECHR. If Parliament had intended that the scope of a health and welfare LPA should extend to the decisions concerning the exercise of relevant rights within the meaning of section 39D(10), I would have expected this to be expressly stated in the statute. By way of analogy, section 11(7)(c) provides that “where a lasting power of attorney authorises the donee…to make decisions about P’s personal welfare, the authority…extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing healthcare for P.” Had Parliament intended decisions concerning the exercise of relevant rights under section 39D to be within the scope of the powers of donees under a LPA, the statute would have been amended to contain a similar provision.

Accordingly, Mr. and Mrs. C, as donees under the LPAs, were not authorised to make decisions relating to matters to which the duty to appoint an IMCA under section 39D(2) related. It follows that the local authority was under a duty to appoint an IMCA if any of the three cases in section 39D(3),(4) or (5) arose.

As state above, when completing the IMCA referral form, under the heading “Part B – type of IMCA referral”, Ms G put a cross in the box numbered B8 next to the words on the form reading “39D – the supervisory body believes that the person deprived of their liberty and their unpaid representative relevant person’s representative will both benefit from the support of an advocate”. For reasons that are not clear to me, the terminology used on the form does not reflect the language of the statutory provisions in section 39D(5). The supervisory body is not under an obligation to appoint an IMCA simply because it believes that P and/or the RPR will “benefit from the support of an advocate”. The obligation only arises where the supervisory body has reason to believe (a) that without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights or (b) that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it, or (c) that P and R are each unlikely to exercise a relevant right when it would be reasonable to exercise it. The reasons why the standard form is drafted as it is were not canvassed in the hearing, but might usefully be considered by the Court of Protection Rules Committee. Be that as it may, the evidence showed that AJ and Mr. C were each unlikely to exercise a relevant right when it would be reasonable to exercise it (AJ because she lacked capacity, Mr. C because he believed that it was in AJ’s best interests to be in residential care.) Accordingly, the local authority was under a duty to appoint an IMCA under section 39D(5)(c).

Alternatively, the evidence indicates that, whilst the idea of the appointment of an IMCA under section 39D was first raised by Ms G, the BIA, it was positively embraced by Mr. C, the RPR. In the circumstances, it could be argued that Mr. C “requested” that an IMCA be appointed. In those circumstances, the local authority was under a duty to appoint an IMCA under section 39D(4).

Did the appointment of the IMCA absolve the local authority from further responsibility to ensure that AJ rights under Article 5(4) were respected?

The IMCA, Mr. R, frankly acknowledged in oral evidence that he should have acted more speedily. He accepted that an objection by P against their placement in a residential home where an authorisation is in force should trigger an appeal to the Court and in this case it was clear at all times that AJ objected to her placement in X House and subsequently in Y House.

Like many IMCAs, Mr. R was extremely busy. In oral evidence, he said that he worked full time as an IMCA. At the time when this case was first referred to him, he was responsible for about 35 cases and that number has now risen to around 40. In fairness to him, as I have already mentioned, he was off sick for a time in the Autumn 2013. Mr. R said that he was aware that part of his role as an IMCA is to discuss with P their rights, including the right to appeal against a standard authorisation. He said, however, that he and his colleagues had been “consistently told” by their managers that they could not act as litigation friends. Consequently there was, he said, no clarity as to how to take matters forward and IMCAs are often in a quandary about what to do in such circumstances. It was the local authority’s case, however, that at all material times funds were available to assist in the appointment of a litigation friend. In cross-examination, Mr. R conceded that he had not made inquiries of the local authority to establish whether additional funds would be made available in this case to assist in the appointment of a litigation friend.

Having acknowledged the difficulties that Mr. R, like many IMCAs, was facing, I do think that he should have acted more promptly in contacting Mr. C and taking steps to challenge the standard authorisation on AJ’s behalf. If his personal circumstances made that difficult, he should have arranged for the case to be allocated to another IMCA.

It is the Official Solicitor’s contention that the appointment of the IMCA did not absolve the local authority from continuing responsibility to ensure that AJ rights under Article 5(4) were respected. Ms Butler-Cole submitted that it was ultimately the local authority’s responsibility to ensure that AJ’s rights under Article 5(4) were not breached. Accordingly, the local authority should have either required the RPR or the IMCA to issue proceedings under section 21A or, failing that, issued proceedings itself. Ms Butler-Cole contended that it is not uncommon for local authorities to issue section 21A proceedings themselves and that there is no bar on a detaining authority issuing such proceedings, citing in support the decision in Westminster City Council v Sykes [2014] EWHCB 9 (COP). She submitted that, whilst it is clear that the scheme of the Act is that P or the RPR should issue the proceedings, there is nothing in the Act that prevents the local authority issuing proceedings itself and there is no principled or practical reason why the local authority, knowing that there was a dispute as to a qualifying requirement, might not ask the court to determine that dispute under section 21A.

Ms Butler-Cole further submitted that the local authority should have ensured at the outset of the IMCA’s appointment that he was funded to seek legal advice and to act as a litigation friend to AJ. Without funding authorisation, the IMCA could not approach the solicitors on AJ’s behalf. With no other potential litigation friend, AJ was effectively prevented from accessing legal advice. Ms Butler-Cole drew attention to the Department of Health’s 6^th IMCA report which identifies, as a point of good practice, the importance of local authorities setting aside a resource pot for the role of litigation friend, which can be drawn from when necessary, and further of local authorities indemnifying the IMCA organization for reasonable costs incurred in the course of the court proceedings.

As set out above, it was Mr. Dooley’s principal submission that the local authority was under no obligation to instruct an IMCA in this case, a submission which, for the reasons I have set out above, I do not accept. Mr. Dooley further submitted, however, that, having appointed an IMCA, the local authority was under no further duty to take steps to ensure that AJ’s relevant rights were exercised. He submitted that the fact that the IMCA had not facilitated any application to the court before November 2013 was not the responsibility of the supervisory body who imposed no restrictions on the work of IMCAs and had funds available in appropriate cases to meet additional costs incurred, for example in acting as a litigation friend. Furthermore, he submitted that there is no duty placed upon the supervisory body to challenge a standard authorization in the statutory scheme. He conceded that this may have been a step taken in other cases, but in this case, having appointed a RPR and an IMCA to support AJ, the local authority was under no such obligation. On behalf of the local authority, he expressed regret about the delays in bringing the matter before the court but submitted that those delays were the result of a combination of mischances rather than any failure on the part of the local authority to uphold AJ’s Article 5 rights.

The principal errors committed by the local authority in this case were, as analysed above, the failure to initiate the authorization process prior to the 13^th June 2013 and wrongly appointing Mr. C to act as RPR. In my judgment, however, the local authority’s obligations did not stop there. The local authority thought that it would be meeting its obligations by appointing an IMCA and making resources available to assist the IMCA to act as litigation friend. As set out above, the appointment of an IMCA under section 39D was entirely appropriate and, although Mr. C was uncertain about how to take matters forward, I accept the local authority’s case that resources were in fact available, for example to assist an IMCA acting as litigation friend. In most cases, that would in all probability have been sufficient. In this case, however, the local authority knew that Mr. C was unwilling or at least very reluctant 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. In those circumstances, I find that the appointment of Mr. R and the provision of resources to assist him in his role as IMCA did not absolve the local authority from its continuing obligation to ensure that AJ’s rights under Article 5(4) were respected. The local authority knew at all times that AJ did not wish to be in X House or Y House. In those circumstances, I consider that the local authority, in addition to monitoring the actions of Mr. C as RPR and taking steps to replace him if appropriate, should have made enquiries 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. Plainly this is a last resort, because of the comprehensive and complex provisions for the selection and appointment of RPRs and the appointment of IMCAs are followed, and if RPRs and IMCAs appointed under these provisions carry out their responsibilities as they should, the rights of an incapacitated person to challenge a deprivation of liberty normally will be protected. But the local authority remained under a continuing and positive obligation to ensure that AJ’s Article 5(4) rights were respected. Thus, if it was not satisfied that the IMCA was taking the necessary steps to apply to the court, and if in all the circumstances it considered such a course to be appropriate, it should have brought court proceedings itself. In this case, however, it is likely that an inquiry of Mr. R by the local authority into the steps he was proposing to take would have clarified the position and led him to initiate proceedings at an earlier stage.

Overall, I conclude that the steps taken by the local authority in this case to ensure that AJ’s challenge to the deprivation of her liberty was brought before the court were inadequate.

As the President has reminded us in Re X and Others (Deprivation of Liberty), supra, it is a fundamental principle, recognised by the European Court in Winterwerp, that P should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. In the absence of these safeguards, he will not have been afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty.

Friends of AJ expressed concern about the way in which she was admitted into care. One of them, ND, as stated above, spoke to Ms B in July 2013 and protested that AJ had been “dumped” in Y House, but was told that the correct process had been followed and as he was not AJ’s next of kin the case could not be discussed further. ND filed a statement in these proceedings setting out his concerns, and describing various meetings with AJ before and after her admission. He paints a concerning picture of AJ’s distress at her situation. He added:

“as AJ’s friends of thirty years or more and people who have been involved in her care, we felt helpless and disappointed that we were now letting her down as there was nothing we could do to help her. She had no voice of her own and no one else to fight her corner. We had been told that because we are not related to her, there was nothing we could do.”

It is plain that ND was misinformed by Ms B. The correct process was not followed. This is a sorry tale of a series of failures by a number of people to ensure that the procedures designed to ensure that AJ’s rights under Article 5 were respected. I accept the Official Solicitor’s submission that ultimate responsibility lay with the local authority.

I therefore grant a declaration in the following terms:

Mr. Dooley assures me that this local authority, which is generally recognised as taking its responsibilities to elderly and vulnerable people extremely seriously, has taken on board the lessons of this case. I accept his assurance. There are, however, a number of wider lessons for practitioners arising from this litigation.

First, I emphasise that the scheme of the DOLS is that, in the vast majority of cases, it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins. It is only in exceptional cases, where the need for the deprivation of liberty is so urgent that it is in the best interests of the person for it to begin while the application is being considered, that a standard authorisation need not be sought before the deprivation begins.

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.

Thirdly, a 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.

Fourthly, the local authority is under an obligation to satisfy itself that a person selected for appointment as RPR meets the criteria in regulation 3 and in paragraph 140 of Schedule A1. If the local authority concludes that the person selected for appointment does not meet the criteria, it should refer the matter back to the BIA.

Fifthly, it is likely to be difficult for a close relative or friend who believes that it is in P’s best interests to move into residential care, and has been actively involved in arranging such a move, into a placement that involves a deprivation of liberty, to fulfil the functions of RPR, which involve making a challenge to any authorisation of that deprivation. BIAs and local authorities should therefore scrutinise very carefully the selection and appointment of RPRs in circumstances which are likely to give rise to this potential conflict of interest.

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.

Seventhly, the appointment of a RPR and IMCA does not absolve the local authority from responsibility for ensuring that P’s Article 5 rights are respected. The local authority must monitor whether the RPR is representing and supporting P in accordance with the duty under paragraph 140 and, if not, consider terminating his appointment on the grounds that he is no longer eligible. The local authority must make sufficient resources available to assist an IMCA and keep in touch with the IMCA to ensure that all reasonable steps are being taken to pursue P’s Article 5 rights.

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.