The recent judgment in DP v London Borough of Hillingdon  (found here - https://www.bailii.org/ew/cases/EWCOP/2020/45.html)has substantial implications on the use of interim declarations in s21A proceedings in the Court of Protection. The judgment also makes (obiter) observations regarding the standard of evidence which is required to support an interim order under s48 Mental Capacity Act 2005 (MCA) in other COP cases.
DP is 72 years of age and has a diagnosis of organic personality disorder and associated catatonic disorder, secondary to a stroke. The London Borough of Hillingdon granted a standard authorisation which deprived DP of his liberty at NN Care Home. DP challenged this under section 21A MCA.
At first instance, the judge was asked to terminate the standard authorisation on the basis that DP had the mental capacity to make decisions about his residence and care. The judge concluded that there was sufficient evidence to make interim declarations pursuant to s48 MCA that DP lacked capacity to conduct proceedings, and to make decisions about his care, and residence, although the judge noted that the doctor assessing DP’s capacity had failed to communicate the purpose of the visit to DP during the capacity assessment.
The case came before Hayden J as an appeal of this decision. The judgment was appealed on 4 grounds:
1: The judge wrongly failed to terminate the standard authorisation;
2: The judge wrongly approached the question whether to make a declaration of incapacity as a best interest’s decision;
3: The judge's order is in breach of Article 5(4) ECHR; and
4: The judge's order is in breach of Article 8 ECHR.
At paragraph 34 of the judgment, Hayden J notes that, “both parties to this application accept that the approach of the Court below was plainly wrong, the making of a s48 declaration of incapacity having been conflated with a 'best interests' decision.”
Hayden J went on to say at paragraph 35:
“The court's approach to a Section 21A application is different to and distinct from its role in a standard welfare application. The Section 21A application is either to vary or to discharge a Deprivation of Liberty authorisation. In such applications, the task of the court is to evaluate the relevant qualifying requirements and to come to a view, on the available evidence, as to whether those requirements continue to be met.”
The judgment stresses the importance for the court to deal with s21A cases “speedily.” It is mentioned at paragraph 36 that the parties submitted that “the court should not treat Section 21A applications in the same way as a welfare application because Article 5(4) ECHR requires the court to determine the former, as a matter of urgency”.
At paragraph 45, Hayden J notes, “When s. 21A proceedings are brought, the court's function is to 'determine' questions as to whether the qualifying requirements are met and to consider varying or terminating the authorisation in light of its determination of the questions.” He went on to say at paragraph 46: “The court's only function is to provide the review of the authorisation which is in force".
As such, there is no need for the court to make a declaration under section 48 regarding capacity in 21A proceedings whilst the standard authorisation remains in force. This is understood to relate to issue of residence and care; the court may still make interim declarations as to lack of capacity in relation to, for example, P’s lack of capacity to conduct the proceedings, if satisfied on the evidence before it.
However, Hayden J rejected the submission that there should never be interim orders of any kind made in a s.21A case. He instead preferred the alternative submission that “An interim order, to gather further information, should only be made if there is a sufficiently clear evidential basis to do so.” Hayden J further noted that is the duty of the court to determine whether the mental capacity requirement is met. If the judge was unclear, then the obligation on the court was to investigate it further and to do so, "speedily".
Lastly, at paragraph 62, the judge made a number of (obiter) observations about the nature and extent of the evidence required to support an order under s.48 MCA within proceedings (in other types of application before the COP), including that the presumption of capacity applies with equal force when considering an interim order pursuant to Section 48 as in a declaration pursuant to Section 15, that the court does not become responsible for authorising P's Deprivation of Liberty upon issuing of a Section 21A application, but rather that the court's function is to review the authorisation which is in force, and that there is a balancing exercise in which the Court is required to confront the tension between supporting autonomous adult decision-making whilst avoiding imperilling the safety and well-being of those persons whom the Act and the judges are charged with protecting.
Lillian Efstathiou, Trainee Solicitor
Posted on Friday, 30th October 2020