RD & Ors (Duties and Powers of Relevant Person's Representatives and Section 39D IMCAS) [2016] EWCOP 49

Mr Justice Baker considers how RPRs and s.39D IMCAs should decide whether to bring an application to the Court of Protection under s.21A of the MCA to challenge a standard authorisation under Schedule A1.
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He rejected the argument of the Official Solicitor which was a presumption that P wishes to exercise the Article 5(4) right unless the RPR is satisfied that he or she does not. Instead he said:

"The RPR and, when appointed, the IMCA, must consider not only the direct evidence of expression of wish, but also indirect evidence of P's wishes as inferred from behaviour taking into account all the circumstances in carrying out the assessment. The RPR must focus on the question whether P wishes to apply to the court and not simply whether he or she objects to the arrangements for their care.

On the other hand, where P is unable to communicate his/her wishes, the RPR should consider what those wishes would be, were he or she able to communicate them. The right to apply to the Court of Protection is available to all persons subject to authorisation under Schedule A1, irrespective of whether or not they can communicate their wishes. The obligation on the RPR to represent and support P in matters relating to the Schedule includes supporting and representing P in making an application where the RPR concludes that P would wish to make the application in circumstances where he or she is unable to communicate that wish."

Paragraph 86 of the judgment provides a helpful guide, listing the issues the RPR/IMCA should consider before making an application to the COP.

Read the full text of the judgment on Bailii