AJ v A Local Authority 2015 EWCOP 5

Issues
DOLs provisions post amendments to MCA 2007 – the selection and appointment of the relevant person’s representatives (RPR) under Part 10 Sched A1.
The role of IMCA’s under s 39 D.
The extent of the duty on the local authority to ensure that a person who lacks capacity is able to challenge a deprivation of liberty.

BACKGROUND
AJ was aged 88 years with vascular dementia. In 2002 she moved into the annex of her niece’s home (Mr and Mrs C).

On 12 April 2013 AJ signed a LPA in respect of both health and welfare and also property and affairs naming Mr and Mrs C as donees – no challenge is made to this.

AJ around this time was referred to social services by a psychiatric nurse and when a local authority care coordinator visited Mrs C asked about the possibility of respite care for AJ so as to prevent a breakdown of the care arrangements. By 22 April 2013 AJ was still refusing help and had then also developed a problem swallowing. The case was transferred to another social worker “B”. Mrs C said that she thought that AJ was no longer safe at home as AJ was no longer eating or drinking, but that AJ would not willingly enter into a residential home. B discussed arranging a meeting with the DOLS safeguard assessor as it was clear that if AJ was placed in a residential home for respite this may be considered as deprivation of liberty.

By early June Mrs C felt that a permanent move needed to be made by AJ into residential  care - AJ was  still not eating properly,  had lost a lot of weight and was still refusing help. Mr and Mrs C had planned a fortnight’s holiday as she was exhausted  and B found X home for respite closest to Mrs C home for the duration of the holiday for Mr and Mrs C .

AJ moved to X home on 13 June 2013 and continued to ask to leave. No assessment was made under DOLS Schedule A1 prior to leaving her home but an urgent authorisation was made by the manager of X home on AJ's arrival on 14 June. On the same day a request was made to the supervisory body for a standard authorisation.

On 17 June a best interests assessor (BIA) “G “was appointed to undertake the role in accordance with Schedule A1. On 20 June the first BIA was completed and concluded that no DOLS at that stage was appropriate as AJ was not deprived of her liberty as she was only in X home for respite; but that if AJ did not return home then it would be and G recommended a standard authorisation for 21 days until Mr and Mrs C returned from holiday.

The LA granted a standard authorisation in accordance with Schedule A1 on 20 June until 10 July 2013 with a condition that the managing authority (X home) should notify the supervisory authority (Local Authority) if there were any changes to the care plan with a request for an immediate review. G also concluded that Mr C should be appointed as the relevant person’s representative for AJ (RPR).

On 24 June 2013 Mr R was appointed as IMCA for AJ under s 39D.

On 25 June a meeting was held and it was agreed by all that AJ should move to Y home (a permanent care home) - this included Mr C as RPR.

On 30 June 2013 another BIA was undertaken and on 4 July AJ moved to Y home where she has remained ever since. Since G visited AJ asked “when can I go home? – can you help me?” (9 July 2013).

A 6 week DOL was made after a second BIA on 10 July 2013 until 21 August 2013 on the same basis as the earlier decision and when it expired was renewed again for a further 6 month period.

However, despite AJ ‘s well-known opposition to Y home no challenge was made to AJ’s standard authorisations and Mr R then visited AJ on 31 July 2013 in order that Ms G could carry out her 3rd best interests assessment. Ms G and Mr R visited AJ on 19.8.13. Mr R  then said he was unsure if he would pursue an appeal for AJ at that time – he had yet to make contact with Mr C . Mr R’s reason was that it was not uncommon for older people to state a desire to return home and that appeals were difficult for IMCAs when it is apparent that they need residential care but he did acknowledge the strength of AJ’s views which indicated a need to pursue some action but he would first speak to Mr C as RPR. 

Once he had spoken to Mr C and it was apparent that Mr C would not pursue an appeal for AJ, Mr R’s manager agreed that Mr R as IMCA would act as AJ’s litigation friend and instruct solicitors to make an application of AJ’s behalf – this was done nearly 6 months after AJ was admitted into residential care on 20.12.13 which challenged the standard authorisation dated 21.8.13.

By 7.3.14 her litigation friend also issued proceedings under HRA for declarations that: 

• AJ had been deprived of her liberty;
• an IMCA should have been appointed under section 39D promptly so that an application could have been made under section 21A  MCA;
• Mr C should not have  been appointed as RPR  for AJ  but should have appointed a paid RPR; and
• seeking damages and costs.
  

On 13.3.14 Mr R was replaced as litigation friend by the OS and prior to  a 2 day hearing in front of Baker J the OS  conceded that a section 21A application could no longer be pursued. No domiciliary care agency was willing to provide care and AJ’s condition and behaviour had deteriorated, but there remained residual concerns of section 21A in relation to the use of restraint and that the court would have to approve a care plan or  any standard authorisation. The OS did not pursue damages but did pursue declarations and costs.

DECISION
Despite AJ’s well know opposition to being at Y home  no challenge was made to the standard authorisation on her behalf. Mr C as RPR agreed with the decision to ensure AJ remained at Y home but there was no effective communication between Mr C as RPR and Mr R  as IMCA. The court found that there were clear breaches of the processes by the Local Authority who could have applied straight to the Court of Protection without initiating the authorisation procedure under Schedule A1 – as per Keehan J's observation at Para 101 (iii) in NHS Trusts 1 and 2 v FG 2014 EWCOP 30.

The fact that AJ had initially  been admitted for respite made no difference  as the consequence was that AJ was deprived of her liberty.

The court decided in  respect of the issue of restraint that  in any case concerning an incapacitated adult the use of any physical intervention whether considered as “ restraint” or not should be recorded in the care plan and monitored by the statutory body commissioning the person’s care and that it should also all be documented and party of the DOLS procedure.

Re the issue of Mr C as RPR the court considered the statutory basis ( Para 53-57 ) and the  DOLS Code of Practice, particularly  Para 7.2 and 7.4 (the role of the managing authority to seek to make sure that the RPR and P understands their right to apply to the Court of Protection) and continuing to consider the role and obligations on the RPR and the Local Authority ( Para 7.15-7.28) and concluded that Mr C was not eligible to be appointed as RPR  (considering reg 3 of the DOLS Code of Practice at 7.7-7.9 and Para 140 of Schedule A1 is mandatory in terms). The court considered that this was also part of the eligibility criteria. Furthermore the appointment of the IMCA could not overcome the ineligibility of the RPR. The BIA should not have selected or confirmed the appointment of Mr C as RPR.

The President in Re X had made it plain that it is not always necessary for P to be joined as a party 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. The managing authority and also the supervisory authority have a duty to ensure that the performance of the RPR is eligible throughout his/her appointment and that the Local Authority should have taken steps to replace Mr C as RPR and issue proceedings under section 21A in order to be complaint with Art 5(4).

In respect of the IMCA the court reviewed section 39D of the Act as supplemented by Schedule A1 and relates to DOLS. The role does not  widen or have a broader general role of representing or supporting P and the role is to undertake specific tasks as set out in section 29D (7), (8), (9).

Where P has executed an LPA  the duty to appoint under section 39D is not excluded under section 40(1)b) unless the donee under the LPA is authorised to make decisions in relation to the matters in section 39D (7) and (8). In this particular case the LPA did not cover the matters in section 39D (3), (4) or (5) and so the duty upon the local authority to appoint an IMCA arose as here it would be under section 39D (5) (c) and in the alternative under section 39D(4) as Mr C “ requested” an IMCA be appointed. The local authority should also have taken steps to make enquires why the IMCA had not taken steps to ensure that the right to apply to the court was being exercised and as a last resort the court could have issued an application to the court as they are under a continuing and positive duty to ensure that AJ’s Art 5 (4) rights were respected.

DISCUSSION
This case awaited the decision of the President in Re X and Others ( Deprivation of Liberty ) 2014 EWCOP 25 which followed the range of issues consequential upon the decision of the Supreme Court in Cheshire West.

This current case provides a helpful overview of the law as it currently stands and reviews all previous authorities ( page 9-12 ). It also helpfully assists those who are unsure as to the role that P may and could play in the proceedings, concurring with the President’s  view as to  joining P in the proceedings at Para 37 of this judgement (quoting Para 19  and 20 of Re X).

The Local Authority could have applied  straight to the Court of Protection without initiating the authorisation procedure under Schedule A1 as per Keehan J observation at Para 101 (iii) in NHS Trusts 1 and 2 v FG 2014 EWCOP 30. The fact that AJ had initially  been admitted for respite made no difference  as the consequence was that AJ was deprived of her liberty.

Urgent authorisation should only be made in exceptional circumstances  where the need to deprive a person of their liberty is urgent, as it must be possible to plan in advance so that standard authorisation  can be obtained  before the deprivation begins.

Professionals need to be on their guard where vulnerable people are admitted to residential  care ostensibly for respite  when the underlying plan is a permanent placement  without proper consideration of their Art 5 rights.

RPR’s must meet the eligibility criteria and not simply be selected and confirmed by the BIA. The Local Authority should also not simply “ rubber stamp” an RPR appointment - if the criteria are not satisfied they are under a duty to refer the matter  back to the BIA.

It is difficult for a close friend or relative who has been closely involved in a move to permanent residential care which involves a DOL to then be appointed as RPR – BIA’s and LA’s must be aware of potential conflicts.

An IMCA must act urgently and with due diligence to ensure that any challenge to Schedule A1 goes before the court expeditiously – failure to do so will lead to the evaporation of P’s Art 5 rights.

Appointment of IMCA’s and RPR’s do not absolve the LA’s of their responsibility for ensuring that Art 5 is not breached and that they are respected – resources have to be made available to IMCA’s to ensure compliance with their obligations and the RPR role must comply with Para 14 of Schedule A1 and if not the LA must consider termination of that RPR.

If no steps are taken by the IMCA or RPR to challenge a DOL authorisation then the LA should consider bringing the matter to court itself – this should be as a last resort.

Read the judgment on Bailii