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	England and Wales Court of Protection Decisions
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> RD & Ors (Duties and Powers of Relevant Person's Representatives and Section 39D IMCAS) (Rev 1) [2016] EWCOP 49 (04 August 2016) URL: http://www.bailii.org/ew/cases/EWCOP/2016/49.html Cite as: [2016] EWCOP 49, [2017] 1 WLR 1723, [2017] COPLR 87, [2017] WLR(D) 15

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IN THE COURT OF PROTECTION

		Royal Courts of Justice
		4th August 2016

MR. JUSTICE BAKER:

1. In Re AJ (Deprivation of Liberty Safeguards) [2015] EWCOP 5, I considered a number of issues concerning the provisions of the Mental Capacity Act 2005 ("MCA") as amended by the Mental Health Act 2007, including aspects of Schedule A1 to the MCA, the so-called Deprivation of Liberty Safeguards ("DOLS"), in particular the provisions governing the selection and appointment of relevant person's representatives ("RPRs") under Part 10 of Schedule A1, and independent mental capacity advocates ("IMCAs") under s.39D, together with the more fundamental question as to the extent of the duty on a local authority to ensure that the person who lacks capacity is able to challenge a deprivation of their liberty brought about by the administrative procedure laid down by the provisions of Schedule A1. One important question not considered in that judgment, however, was 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. There is, I understand, considerable uncertainty amongst professionals as to the right approach to this question. As a result, five test cases were identified, all involving elderly people, hereafter referred to as RD, JB, JP, EP and JW, each of whom was suffering from a form of dementia, to enable the court to consider the general question and specific issues from a range of different factual circumstances. In each case an application was made under s.21A and the case transferred to me.
2. At a joint directions hearing on 23^rd November 2015, I directed that the five applications be joined for the purpose of determining whether the applications had been properly brought, and listed the matter for a hearing in February/March 2016. I invited the Secretaries of State for Health and Justice to consider being joined as parties to make submissions on the issue and gave case management directions for the hearing. Subsequently, both Secretaries of State indicated that they did not wish to intervene. At the hearing on 23^rd November, the local authority in two of the cases, EP and JW, had indicated that they had accepted that the two applications had been properly made and, in order to avoid any further delay, the substantive issues were released at that stage to be determined by the local court. Sadly, JW died a few days before the hearing, although neither the lawyers representing the parties, nor the court, was informed of his death until some weeks later. In those two cases, the local authority, having accepted that the proceedings were properly issued, and the substantive issues having been decided, there was, by the time of the hearing in February/March 2016, no issue in respect of which the court could properly make any order, although the local authority representatives and the applicants in each case contended that those two cases provided helpful illustrations for the court to consider when addressing the issues.
3. The hearing took place on 29^th February and 1^st March 2016 in Bristol. The Official Solicitor, acting as litigation friend for RD, was represented by Mr. Parishil Patel. JB, JP, EP and JW, usually referred to below as 'the four other applicants', each appeared by litigation friend, either their RPR or, in the case of JB, her s.39D IMCA, and were all represented by Ms. Victoria Butler-Cole. The local authorities, as supervisory bodies under Schedule A1, were represented by Miss Sian Davies. In the case of JP, the relevant clinical commissioning group ("CCG") was joined as a party and represented by Miss Claire Leonard of counsel. All counsel prepared detailed skeleton arguments or position statements for the hearing. In the event, there was insufficient time to hear counsel for the respondents – the local authorities and the CCG – and it was agreed that they would file written submissions within 14 days. It was further agreed that Mr. Patel and Ms Butler-Cole would each file a reply 14 days thereafter. In the event, an application for an extension was made on behalf of the Official Solicitor. When eventually filed, the Official Solicitor's reply put forward a new argument and that, in turn, prompted, albeit without direction, a further response from Ms Butler-Cole on behalf of the other four applicants, Miss Davies on behalf of the local authority, and Miss Leonard on behalf of the CCG. Thus the process of written submissions was not completed until towards the end of May, by which point further pressure of judicial time put back delivery of the judgment until today.

Summary of Facts.

(1) RD

4. RD was born in 1930. Since September 2013 she has lived at B House, a nursing home registered for mental health and dementia care. She has been subject to a series of DOLS authorisations which have been renewed during the currency of these proceedings. The supervisory body in her case, under Schedule A1, is Herefordshire County Council ("HCC").
5. RD has had a lifelong presentation of mental and physical disabilities, with a historic diagnosis of chronic schizophrenia, and has been under the care of psychiatric services for many years. Recent assessments, however, have suggested that her symptoms are more closely akin to learning disabilities and autism. Her problems are characterised by abnormalities of speech, understanding of social conventions and interactions, repetitive motor mannerisms, and apparent low intelligence. Cognitive impairment has become more apparent during her time at B House, and is characterised by poor orientation in time and place and poor short term memory. She has demonstrated challenging and unpredictable behaviour and has, at times, been at risk of causing harm to staff and other residents. She has been assessed as being totally dependent on others for all aspects of her care and medication. Her presentation and care needs have not changed significantly although it has been reported that her aggressive behaviour has significantly decreased, probably, it is thought, as a result of the change in her medication to Risperidone and Lorazepam in 2014.
6. Throughout her stay at B House, RD has been subject to a number of restrictions. She is unable to leave the house unaccompanied and will be prevented from doing so if she tries. She has 1:1 support for personal care, and is checked on by staff every two hours during the night. The door to her bedroom has an alarm which is activated if she walks out. She is given psychotropic medication covertly. As a last resort, staff are permitted to use physical restraint to manage her challenging and aggressive behaviour.
7. During the initial stages of her stay at B House, RD frequently expressed an objection to being at the care home and a desire to leave. Recently, however, she has been inconsistent in what she has said about her wishes in this respect. On the one hand she has said things like: "They want me to go from here. I'm frightened" and "They won't take me from here, will they?" At other times she has said: "I don't like it here" and asked if she could return to be with her parents who are, of course, deceased. A best interests meeting convened on 6^th July 2015 concluded that it was in her best interests to remain at B House and recommended certain steps be taken to enhance the quality of her life. An analysis was carried out about her various comments as to her wishes, and concluded that there had been some change of attitude on her part about living there with more recent reports indicating that she felt safe at B House, and was afraid to move.
8. On 7^th September 2015, RD, assisted by her relevant person's representative, Mr. Stevens, issued these proceedings under s.21A challenging the standard authorisation. Subsequently, the Official Solicitor accepted an invitation to act as RD's litigation friend in these proceedings.

(2) JB

9. JB was born in 1931. She has a diagnosis of Alzheimer's disease, and since November 2011 has resided at BL Care Home. She is unable to meet her personal care needs and requires regular prompts and assistance during the day. She is unable to go out on her own and her movements are continually monitored by staff members who decide when and where she goes. She has tried to leave the property on many occasions. For a long period after she moved to BL Care Home she had near daily episodes of agitation, when she became fixated on her children (all of whom are grown up) and was convinced she had to leave to pick them up from school. She has four adult daughters, who are all very involved in her care. All her family agree that the placement is in her best interests.
10. A standard authorisation under Schedule A1 was first granted in her case in January 2015. One of JB's daughters was appointed as her relevant person's representative and, in addition in her case, a s.39D IMCA, Mr. Underhill, was appointed. A second authorisation was granted in July 2015. JB had continued to exhibit distress and agitation and attempted to leave the building and become verbally aggressive when prevented from doing so. At other times, she had repeatedly requested to leave. When asked by Mr. Underhill she expressed surprise that she was in a care home, and stated she did not intend to stay very long but did not object to the placement. Notwithstanding these comments, however, Mr. Underhill concluded that her actions indicated an objection to the placement and/or the restrictions on her liberty and therefore that an application should be made under s.21A.
11. A further review of the standard authorisation undertaken in December 2015, included a best interests assessment, which recorded that JB had been considerably more settled in recent months. The episodes of agitation had decreased and she was no longer physically attempting to leave the property. She was engaging more in activities and had enjoyed walking around the grounds. Although she sometimes got upset in the afternoons when she thought she would be late for the children at school, she was much more easily distracted than before, and the episodes did not last as long. A psychiatric report supported the view that JB was happier at the home than she had previously been, and that staying at the care home was likely to be better for her than the disruption of moving to a different residence.

(3) JP

12. JP was born in 1937. She has had a number of significant physical medical problems over the past 20 years, and now suffers from moderate to severe dementia thought to be a mix of Alzheimer's disease and vascular dementia. Since January 2014 she has lived at a nursing home ("H House"). She has a poor memory and is disorientated in time and space. She regularly becomes distressed and agitated, calling out loudly with repetitive sounds. She is able to communicate verbally and make her needs known, although due to her cognitive impairment she can become confused. She is no longer able to walk and is doubly incontinent, and requires assistance with all activities and personal care, but has no insight into her care needs. She has 1:1 support during the day and is subject to regular observations every half an hour at night.
13. On arriving at H House, JP repeatedly asked to be allowed to return home. After April 2014, a series of standard authorisations were granted by the supervisory body, in her case Bristol City Council ("BCC"). In the course of the various best interest assessments, and conversations with her paid RPR, Mr. Underhill, she had, on occasions, talked about going home, but on other occasions has appeared happy without objecting to her placement. When Mr. Underhill visited in August 2015 JP seemed happy and relaxed, and had some understanding that she was in a care setting. Staff at the nursing home reported, however, that she continued to be distressed on a daily basis, shouting that she had to return home, and screaming, biting and hitting. In view of this pattern of agitation and distress, Mr. Underhill, in November 2015, applied to the court under s.21A.
14. In December 2015 JP moved to a quieter wing within H House in the hope that the staff there would be better able to meet her needs. Initially, she seemed more settled and calm, but in subsequent visits Mr. Underhill noted that she was once again very agitated. Her support worker had suggested that she would benefit from being in a smaller care home environment since her distress frequently leads to unhappy interactions with other residents, and a very unsettled atmosphere in the home, which in turn adds to her distress.
15. In January 2016 Mr. Underhill discussed the option of bringing an application to the court with JP, who emphatically stated that she would like this to happen.

(4) EP

16. EP was born in 1929. In December 2014 she was diagnosed with vascular dementia. In March 2015 she suffered a fall and was admitted for a lengthy stay in hospital for treatment for her injuries. On 16^th April 2015 an urgent authorisation was granted as she was presenting with delirium, and acting in a very confused manner, suffering from a serious urinary tract infection and attempting to leave the hospital. Subsequently, a short term standard authorisation was put in place to allow for a thorough discharge plan to be prepared.
17. On 27^th May 2015, EP was discharged to G House Care Home. A paid relevant person's representative, Ruth Thompson, was appointed. At this stage EP was clearly objecting to being at home in conversations with the best interests assessor and the RPR. To Miss Thompson she said that the care home might as well be a prison and that she only wanted to return to her own home. A further short term standard authorisation was granted by the supervisory body, Dorset County Council ("DCC") in July 2015, followed by a series of further authorisations. Staff at the care home and visiting friends noticed that EP appeared to be more settled and happy, although there were still occasional periods of agitation. In particular, she became distressed during and after trips away from the home. On one occasion she was so distressed on returning after a trip that she threw a vase through a glass pane in the front door.
18. When Miss Thompson spoke to her in October 2015, EP was clear that she did not wish to remain in the placement, and had packed all her belongings into black bags in her wardrobe. In the statement of facts and grounds filed in support of the application in her case it is recorded:

"She was advised as to the legal framework of the steps she could take to challenge the situation she found herself in. She did not think that a judge should have to make a decision on her behalf, and found it incredibly difficult to believe that such a state of affairs existed. It was felt that she followed the relatively complex explanation of the DOLS framework and system whereby a judge reviews the decision given her background in social work, (i.e. she was asking lots of pertinent questions and making pertinent comments), but that she refused to believe that she should be someone subject to such 'governance'".

19. The RPR concluded that there was a fluctuation in EP's compliance with the care package at G House, and her acceptance of the situation. Ultimately, Miss Thompson decided to make an application under s.21A. In the statement of facts and grounds she observed that this set of circumstances cannot be unique and, as such, sought judicial guidance as to whether an application under s.21A should be brought in these circumstances, or whether there was any work that could be done before the application is made to ensure that it is brought before the court in circumstances that were as narrow as possible, whilst ensuring that the individual's human rights were protected.

(5) JW

20. JW was born in 1924. In 2013 he suffered a series of strokes, and doctors decided that he could not safely return home as he had significant care needs, but was likely to refuse care at home as he had done previously. It was decided that he lacked capacity to make decisions about his future residence because of his lack of insight into his care needs. The decision that he could not return home was supported by his wife. In October 2013, therefore, he moved to F Nursing Home, although it was not until February 2014 that a standard authorisation was sought and granted by the supervisory body, DCC. Further standard authorisations have been granted subsequently.
21. The documents before the court show that JW has consistently expressed objections to his placement at FH Nursing Home. He became more settled and willing to engage with staff and activities, but whenever questioned about his placement he reiterated his wish to return home. At the same time, however, he insisted he did not want carers to visit him at home. In April 2014, after the second standard authorisation was granted, a paid RPR, Mrs. Sealey, was appointed. In conversations with the RPR, and with other professionals, JW has increasingly appeared settled but has invariably maintained his position of wanting to return home. His wife, like others, maintained her position and supported his continued stay at F Nursing Home. As a result, relations between the couple became strained, as JW came to blame his wife for his placement.
22. In September 2015 Mrs. Sealey visited again. The nursing home reported that JW was now expressing the wish to go home less frequently and was no longer trying to leave. Nonetheless, when she spoke to him herself, he said that he thought that, although the care home was fine, it was time to go home. He continued to say that he would not need too much help at home. Mrs. Sealey noted the care home had gone to great lengths to make him feel comfortable. He was engaging in more activities and visits with his wife seemed to be going better. Mrs. Sealey asked JW about making an application to the court. At this he became upset and said he did not think a judge would be able to make this decision. In a further conversation in November 2015 Mrs. Sealey noted that, despite appearing more settled in the nursing home, he was still objecting to the placement and, on this occasion, responded positively to the idea that the issue should be referred to a judge.
23. On 6^th November 2015 Mrs. Sealey, on behalf of JW, filed an application under s.21A. A subsequent assessment concluded that JW's mobility had not improved in recent years and due to his age, poor insight, attention difficulties, and poor ability to assess risk, he was unlikely ever to be able to mobilise independently and therefore required 24 hour care and supervision. JW's wife remained opposed to her husband returning home even with a package of care.

The Law.

24. As I observed in para. 28 of my judgment in Re AJ, the starting point is Article 5 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR") incorporated into the law of England and Wales by the Human Rights Act 1998. 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 includes, under paragraph (e), 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."

25. The European Court of Human Rights has considered the application of Article 5 in the context of mental illness or incapacity in a number of cases including Winterwerp v The Netherlands (1979) 2 EHRR 387, Waite v UK [2002] ECHR 804, X v United Kingdom (1981) 4 EHRR 188, Shtukatarov v Russia (2012) 54 EHRR 962, Stanev v Bulgaria (2012) 55 EHRR 696, MH v UK [2013] ECHR 1008, and Ivinovic v Croatia (2014) EHRR 964. The underlying principles were first expressed in Winterwerp. As to the lawfulness of a deprivation of liberty in cases falling within Article 5(1)(e), the European Court in that case observed at para. 39 of the judgment:

"In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."

26. As to the rights guaranteed by Article 5(4), the European Court stated at para. 60:

"The judicial proceedings referred to in Article 5 (4) need not, it is true, always be attended by the same guarantees as those required under Article 6(1) for civil or criminal litigation. Nonetheless, 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'. Mental illness may entail restricting or modifying the manner of exercise of such a right but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves."

Importantly, as the court emphasised in Waite v UK, supra, para. 59:

"Article 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention – an applicant is not required, as a precondition to enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his release."

27. The statutory provisions in respect of mental incapacity of adults in England and Wales are found in the Mental Capacity Act 2005 ("MCA"). Section 1 of the MCA sets out the overriding principles to be applied under the Act, including – of particular relevance to this case – the obligations under s.1(5) to act and make decisions in P's best interests and under s.1(6) to have regard to whether the aim of any act or decision can be achieved in a less restrictive way. Provisions concerning deprivation of liberty were inserted into the MCA by amendments introduced in the Mental Health Act 2007. As Mr. Patel observes at para. 18 of his skeleton argument in this case, under the MCA a deprivation of liberty can take place in one of three ways:

(i) pursuant to s.4B, where the deprivation of liberty is to enable P to receive life-sustaining treatment.

(ii) pursuant to s.4A(3) ,where the deprivation of liberty is giving effect to a relevant order made by the court under s.16(2)(a); or

(iii) pursuant to s.4A(5), where the deprivation of liberty is authorised pursuant to Schedule A1.

It is the third of these three ways that is under consideration in this case.

28. Schedule A1 contains the provisions known as the Deprivation of Liberty Safeguards ("DOLS"). The provisions in the Schedule are supported by guidance set out in the Mental Capacity Act 2005 Deprivation of Liberty Safeguards Code of Practice ("the DOLS Code of Practice"). The key features of the DOLS are a process whereby a supervisory body, namely the local authority where the person is ordinarily resident or where the hospital is situated, may authorise a deprivation of liberty ("standard authorisation") and a process where under the managing authority of a care home or a hospital may authorise a deprivation of liberty for a short period pending the grant of a statutory authorisation ("urgent authorisation"). By these processes a person lacking capacity may be deprived of his/her liberty by administrative action. In order to ensure compliance with Article 5(4) of ECHR, s.21A was inserted into the Act to give the Court of Protection jurisdiction to review the lawfulness of the detention of anyone subject to a standard or urgent authorisation.
29. Schedule A1 contains detailed provisions as to the qualifying requirements for authorisations, and the process for carrying out assessments to determine whether the requirements are satisfied. Under para. 50 a supervisory body must give a standard authorisation if assessments have come to the conclusion that the relevant person meets the six qualifying requirements identified in para. 12(1), namely:

(a) the age requirement;

(b) the mental health requirement;

(c) the mental capacity requirement;

(d) the best interests requirement;

(e) the eligibility requirement;

(f) the "no refusals" requirement.

For the purposes of this judgment, it is unnecessary to set out the provisions in the Schedule concerning the various requirements, save at para. 16 concerning the best interests requirements, which provides:

"(1) The relevant person meets the best interests requirement if all of the following conditions are met.

(2) The first condition is that the relevant person is, or is to be, a detained resident.

(3) The second condition is that it is in the best interests of the relevant person for him to be a detained resident.

(4) The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident.

(5) The fourth condition is that it is a proportionate response to—

(a) the likelihood of the relevant person suffering harm, and

(b) the seriousness of that harm,

for him to be a detained resident."

30. Schedule A1 also contains a number of other provisions including a process for reviewing authorisations, and provisions governing relevant person's representatives ("RPRs") and independent mental capacity advocates ("IMCAs"). Part 8 of Schedule A1 (paras. 101 to 125) contains provisions for reviews of standard authorisations by supervisory bodies. Under para. 102, a supervisory body must carry out such a review if requested to do so by "an eligible person" which includes the relevant person, his/her representative and the managing authority of the relevant hospital or care home. Under para. 103(1), an eligible person may, at any time, request the supervisory body to carry out a review of the standard authorisation, and under para. 103(2) the managing authority of the relevant hospital or care home must make such a request if one or more of the qualifying requirements appear to them to be "reviewable" on grounds defined in paras. 104 to 107, including, under para. 105(1), that the relevant person does not meet the requirement in question. It follows that, if the RPR is of the view that one or more of the conditions for the best interests requirement at para. 16 is not met, he may, as an "eligible person" request the supervisory body to carry out a review. Chapter 8 of the DOLS Code of Practice gives further guidance as to when and how authorisations should be reviewed by the supervisory body.
31. The provisions concerning RPRs are set out in Part 10 of Schedule A1. Of particular relevance here are paras. 139 and 140. Under para. 139(1):

"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."

32. Part 10 is supplemented by Chapter 7 of the DOLS Code of Practice. Under the heading "What is Role of the Relevant Person's Representative?" the Code provides:

"7.1 The supervisory body must appoint a relevant person's representative for every person to whom they give a standard authorisation for deprivation of liberty. It is important that the representative is appointed at the time the authorisation is given or as soon as possible and practical thereafter.

7.2 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 safeguards, 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 is independent of

the commissioners and providers of the services they are receiving.

7.3 The best interests principle of the Act applies to the relevant person's representative in the same way that it applies to other people acting or making decisions for people who lack capacity."

33. It is notable that neither para. 140 of Schedule A1, nor Chapter 7 of the DOLS Code of Practice, describes the circumstances in which the RPR should apply to the court under s.21A. There are other provisions concerning the selection, appointment, monitoring and supervision of RPRs in the Schedule and Regulations explained under the Act, which are considered in the judgment in Re AJ, but are not relevant here.
34. The main provisions concerning IMCAs for the purpose of cases such as this are set out in s.39D of the MCA:

"(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 have 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 authorisation;

(b) the purpose of the authorisation;

(c) the duration of the authorisation;

(d) any conditions to which the authorisation is subject;

(e) the reasons why each assessor who carried out an assessment in connection with the request for the authorisation, or in connection with a review of the authorisation, 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."

35. It is again notable that no further guidance is given as to how to determine whether P wishes to exercise his or her right of appeal.
36. The interpretation of the statutory provisions concerning s.39D IMCAs was considered in my judgment in Re AJ at paras. 99 to 112. Of these, the particular point relevant to the present case is para. 108 in which I said, inter alia:

". . . 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)."

37. As already stated, s.21A establishes the right of application in the Court of Protection which ensures the statutory scheme complies with Article 5 of ECHR. Under s.21A(2), where a standard authorisation has been made, the Court of Protection has the power to determine whether the relevant person meets the qualifying requirements, the period during which the standard authorisation is to be in force, the purpose which the standard authorisation is given, and the conditions subject to which the standard authorisation is given.

Under s.21A(3), if it determines a question under subsection (2) the court has power to vary or terminate the standard authorisation. Similar provisions for urgent authorisations are set out in s.21A(4) and (5). It has been held that, on application to the court under s.21A, the entirety of P's interests are under review: Re UF [2013] EWCOP 4289 per Charles J.

38. As Ms Butler-Cole rightly submitted, while s.21A sets out the powers of the court in respect of an urgent or standard authorisation, it says nothing about how applications to the court are to be made or in what circumstances.
39. Chapter 10 of the DOLS Code of Practice gives some guidance concerning application to the Court of Protection concerning the DOLS. Of relevance to the present case are paras. 10.2, 10.5 and 10.6.

"10.2 Once a standard authorisation has been given, the relevant person or their representative has the right to apply to the Court of Protection to

determine any question relating to the following matters:

whether the relevant person meets one or more of the qualifying requirements for deprivation of liberty

the period for which the standard authorisation is to be in force

the purpose for which the standard authorisation is given, or

the conditions subject to which the standard authorisation is given.

……………

10.5 Wherever possible, concerns about the deprivation of liberty should be resolved informally or through the relevant supervisory body's or managing authority's complaints procedure, rather than through the Court of Protection . . . The review processes covered in chapter 8 of this Code also provide a way of resolving disputes or concerns, as explained in that chapter.

10.6 The aim should be to limit applications to the Court of Protection to cases that genuinely need to be referred to the court. However, with deprivation of liberty at stake, people should not be discouraged from making an application to the Court of Protection if it proves impossible to resolve concerns satisfactorily through other routes in a timely manner."

Save for these provisions, the Schedule and DOLS Code of Practice do not contain detailed guidance as to circumstances in which an application is to be made to the Court of Protection.

40. In Re AJ, I considered a number of questions arising in those proceedings concerning a person's authorisation under Schedule A1, the selection and appointment of RPRs and s.39D IMCAs, and the extent of the duty on a local authority to ensure that the person who lacks capacity is able to challenge the deprivation of their liberty. Amongst my conclusions in that case were several that are relevant to the current proceedings, namely:

(1) Article 5(4) gives P an unqualified right of access to the court so that there is no place for a best interests decision about the exercise of that right. [para.88]

(2) A s.39D IMCA did not have a broader role of representing or supporting P, and was not under any duty to assist to determine what was in her best interests, but rather was to perform specific functions set out in s.39D (7) to (9). [para.108]

(3) The appointment of an RPR and a s.39D IMCA did not absolve a local authority from its continuing obligation to ensure that P's Article 5(4) rights were respected and, in the circumstances of that case, where neither the RPR nor the IMCA had brought proceedings, the local authority ought to have considered bringing proceedings before the court itself. [paras 125 to 126]

At paras. 134 to 140 I identified a number of wider lessons for practitioners and lawyers arising from the litigation but the issue of 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 did not arise. It is that issue which arises for consideration in the current proceedings.

The Issues.

41. The general issue arising in these cases was summarised by counsel on behalf of the parties in a variety of ways. To my mind, the issue was best articulated by Ms Butler-Cole as follows: "When, if at all, does the requirement under Article 5(4) to assist P to exercise his or her right of appeal to the Court of Protection under s.21A of the MCA arise in cases other than those in which P expresses a clear and consistent objection to the arrangements for his/her care and treatment?" The specific issue arising in respect of each of the adults who are the subject of these proceedings is whether the proceedings in each case were properly brought.
42. The general issue has become a matter of concern following the decision of the Supreme Court in P v Cheshire West and Chester Council [2014] UKSC 19 as to the interpretation of deprivation of liberty in the context of mentally incapacitated adults, which is said to have led to a large number of applications for authorisations under Schedule A1 and hence potentially to a correspondingly large number of applications to the court under s.21A. Attempts have been made to grapple with some of the factual consequences of the increased applications to the court in a series of cases, notably the judgments of Sir James Munby P in Re X and Others. (Deprivation of Liberty) [2014] EWCOP 25 and in Re X and Others (Deprivation of Liberty) (No.2) [2014] EWCOP 37, the observations of the Court of Appeal on appeals against those decisions reported as Re X (Court of Protection Practice) [2015] EWCA Civ 599, and the decisions of Charles J in Re NRA and Others. [2015] EWCOP 59 and Re JM and Others [2016] EWCOP 15. These cases have largely focussed on how P is to participate in proceedings before the Court of Protection. None of them addresses the prior question which arises in the current proceedings, namely, the circumstances in which an application should be brought under s.21A.
43. I should, however, remind myself that, in considering the general issues raised by the parties before me, I must not go beyond the proper ambit of litigation. It is not the function of the court to consider generic academic issues. As Moore-Bick J observed in the Court of Appeal in Re X, supra (at para 146):

"The Court's essential function is to determine disputes between the parties to the proceedings before it. Although there are circumstances in which it will decide questions in a consultative capacity (for example in relation to the conduct of an administration or winding up or in relation to the disposal of trust assets), such cases always involve the determination of questions of immediate practical significance to those who have brought the proceedings. That is not the same as being asked to decide questions of law in the abstract."

44. I also bear in mind the warning delivered by Lord Phillips of Worth Matravers MR in R (Burke) v General Medical Council & Ors. [2005] EWCA Civ 1003 at para. 21, that:

"There are great dangers in a court grappling with issues . . . when these are divorced from a factual context that requires their determination. The court should not be used as a general advice centre. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice. This danger is particularly acute where the issues raised involve ethical questions that any court should be reluctant to address, unless driven to do so by the need to resolve a practical problem that requires the court's intervention."

45. With these warnings firmly in mind, I shall consider first the lengthy and detailed submissions on the general issue, and proceed to consider the specific issues in each case.

Submissions.

(1) The Official Solicitor on behalf of RD

46. On behalf of the Official Solicitor, acting as litigation friend for RD, Mr. Patel invited the court to adopt a broad approach to the general question. In his skeleton argument and subsequent written submissions, his principal line of argument was as follows:

(a) Given the importance of the availability of a court review in circumstances where a person is detained by administrative action, any evidence of P's wishes to bring the application is sufficient to trigger the duty of the RPR or IMCA to assist P in their application to the court.

(b) Evidence of P's wishes may be direct, (arising from conversations between P and the RPR or IMCA, or comments made by P to others, in which he or she has expressed a wish to challenge the standard authorisation or leave the care home), or indirect, (for example inferences drawn from P's behaviour such as attempts to leave the home).

(c) In certain circumstances, (for example, if P's wishes appear to fluctuate) it may not be possible for the RPR or IMCA to be satisfied that P does not wish to exercise the right to apply to the court. P's compliance with arrangements and/or a lack of clarity about whether he/she objects and/or any fluctuation in his or her wishes is not necessarily evidence that he or she does not wish to exercise the right of access to the court. It is the Official Solicitor's submission that in those circumstances it is appropriate for the RPR or IMCA to apply under s.21A.

47. In support of this latter submission that it is appropriate for an application to be made where it is not possible to be satisfied that P does not wish to exercise the right to apply, Mr. Patel relied on the wording of s.39B(8)(a) under which the IMCA is required "in particular" to take such steps as are practicable to help P and the RPR exercise the right to apply to the court if it appears to the IMCA that P or the RPR wishes to exercise that right. He submitted that the use of the words "in particular" makes it clear that the duty to assist P to initiate proceedings is not limited to cases where P has expressed a wish to exercise the right. In developing his argument in a further note filed before the hearing and in oral submissions, Mr. Patel pointed out that there may be many reasons why P may be unable to express a clear, persistent willingness to bring proceedings, and submitted that there is no reason why such a person should be in any worse position than someone who is able to express a clear and consistent wish to exercise his right of access to the court.
48. Mr. Patel further submitted that the wording of para. 140 of Schedule A1 supports his submission that it is appropriate for an application to be made where it is not possible to be satisfied that P does not wish to exercise the right to apply. The RPR's duties are not defined in the same way as those of an IMCA under s.39D. Instead, the RPR has a general obligation to "represent and support" P in matters in relation to or connected with the Schedule. Mr. Patel submitted that Parliament must have deliberately intended not to limit the RPR's powers and duties.
49. Mr. Patel sought to draw further support for his proposition from the fact that, as analysed in my judgment in Re AJ paras. 125 to 126, the supervisory body is under a continuing and positive obligation under Article 5 to ensure that P's rights are respected. If the local authority concludes in the circumstances that an application to the court should be made in circumstances where neither the RPR nor the IMCA is taking the necessary steps to apply to the court, it must, as a last resort, apply to the court itself.
50. Mr. Patel submitted that the availability for exercise of a review under Part 8 of Schedule A1 has no bearing on whether P's right to apply to the court should be exercised, because the review itself does not have the "judicial character" required by Article 5(4). He submitted that, insofar as para. 10.5 of the DOLS Code of Practice suggested otherwise, it needs to be read in a way that is compatible with Article 5(4). He further submitted that the court must determine what Article 5 requires without reference to resource constraints. He acknowledged that the court will wish to be mindful of the limited resources available to deal with such applications, but contended that the answer lies not in limiting P's access to the court, but rather in ensuring that, once access has been achieved, the process and content of the court's review are adapted to ensure that the requirements of Article 5 are met in a practical, effective and speedy way.
51. In his skeleton argument Mr. Patel identified the decision of the House of Lords in R(H) v Secretary of State for Health [2005] UKHL 60 as a potential obstacle to his argument. In that case, the House of Lords rejected the applicant's contention that an automatic reference to the Mental Health Review Tribunal in a case under s.2 of the Mental Health Act 1983 was necessary to achieve compliance with Article 5(4). In para. 23 of her judgment Baroness Hale of Richmond said:

". . . the argument is that a right 'to take proceedings' is ineffective if the patient lacks the ability to do so. Given that the Convention is there to secure rights that are 'practical and effective' rather than 'theoretical and illusory' this is a powerful argument. But it does not lead to the conclusion that section 2 is in itself incompatible with the Convention or that the solution is to require a reference in every case. Rather, it leads to the conclusion that every sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so."

52. Subsequently, the applicant in that case, "H", appealed to the European Court of Human Rights where her appeal succeeded in part (see MH v UK [2014] supra). The court made no comment on the passage in Baroness Hale's judgment quoted above, but observed at para. 93 of its judgment:

"When a mental patient is not fully capable of acting for herself on account of her mental disabilities, by definition the compensatory safeguards to which the State might have recourse in order to remove the legal or practical obstacles barring such a person from being able to benefit from the procedural guarantee afforded by Article 5(4) may well include empowering or even requiring some other person or authority to act on the patient's behalf in that regard."

53. In his supplemental note and oral submissions, Mr. Patel identified two important differences between the context of the MH case and the current applications. First, whereas, as Baroness Hale herself observed in the House of Lords at para. 4 of her judgment, most patients admitted under the Mental Health Act do have some capacity to make an application to a tribunal or have someone else who will help them make it, it is far from clear that the same can be said about incapacitated adults deprived of their liberty under Schedule A1 of the MCA. Secondly, the Mental Health Act provides a wider range of mechanisms for referring a case to a tribunal which do not exist under the MCA. Mr. Patel, therefore, submitted that the dicta of Baroness Hale quoted above are not applicable to the determination of how the rights of a mentally incapacitated adult who is deprived of his liberty under authorisations granted under Schedule A1 of the MCA should be protected.
54. In his original skeleton argument filed prior to the hearing, Mr. Patel had submitted that the fact that the arrangements are agreed to be in P's best interests cannot have a bearing upon whether he or she should be assisted in initiating proceedings in the court, because to hold otherwise would conflate what is required in order to ensure that the detained person has access to the court with what is required by the court once access is obtained. However, in his reply, filed subsequent to the written submissions filed on behalf of the supervisory bodies and the CCG, Mr. Patel put forward a different argument. He submitted that the roles of the RPR and the s.39D IMCA were different in that there was a distinction in the statutory scheme. The circumstances in which the RPR has a duty to assist P to access a court were wider than those which expressly applied to a s.39D IMCA. As for the RPR, where P lacks the capacity to decide whether or not to apply to the court, the RPR must make that decision on his behalf, and in making a decision he must act in P's best interests. Mr. Patel based his submission on s.1(5) of the MCA, and para. 7.3 of the DOLS Code of Practice, both cited above. He proceeded to recast his submissions within the best interests framework, submitting that it is a matter for the RPR to decide what weight to place on P's wishes and feelings in the best interests analysis. Other relevant circumstances to be taken into consideration in this analysis would be likely to include the benefit to P of independent judicial scrutiny of his arrangements, and any impact, positive or negative, which the decision to bring, or not bring, proceedings would have upon P.

(2) The Four Other Applicants.

55. The four other applicants in these proceedings were represented by Ms Butler-Cole, instructed by the RPRs or, in the case of JB, by a s.39 IMCA, as litigation friends. In her skeleton argument, Ms Butler-Cole stressed that these cases were not comparable to the position of the AJ case. The litigation friends here contend that where, as in AJ, P expresses a clear and consistent objection to being placed in a care home prior to being moved, the role of an RPR or s.39D IMCA should be very limited since, in those cases, the court's involvement should be sought prior to the move taking place. Where P's clear and consistent wish not to be in a care home is expressed after a move occurs, it is, submitted Ms Butler-Cole, equally clear from AJ that the proceedings should be issued promptly. The question arising in the present proceedings is, as set out above: when, if at all, does the requirement under Article 5(4) to assist P to exercise a right of appeal to the court under s.21A arise in cases other than those in which P expresses a clear and consistent objection?
56. The answer to this question put forward by the litigation friends for the four other applicants is that, in cases other than those in which P expresses a clear and consistent objection to the arrangements for his/her care and treatment, proceedings under s.21A should be issued where it appears, having regard to all the circumstances, that P wishes, or would wish, to exercise a right of appeal. This requires evidence capable of founding a reasonable belief that P would wish to appeal, having regard to P's express wishes, his or her behaviour, and the wider circumstances of his or her deprivation of liberty. Ms Butler-Cole informed the court that the litigation friends for whom she acted did not favour the so-called "double negative" formulation suggested by the Official Solicitor, namely that proceedings should be issued where it is not possible for the RPR to be satisfied that P does not wish to exercise a right of appeal.
57. Ms Butler-Cole compared and contrasted the language in s.39D ("if it appears to the advocate that P wishes to exercise a right of appeal") with the test formulated in the context of the Mental Health Act by Baroness Hale in the H case cited above ("reason that P would wish to exercise her right of appeal"). On the one hand, Ms Butler-Cole suggested that test of "appearing" is less demanding than a test of "having reasonable belief". On the other hand, she submitted that focusing solely on whether P "wishes to appeal" as opposed to "would wish to appeal" is too narrow. The litigation friends for whom she acts consider that it would be incompatible with Article 5(4) for the question of whether to appeal to the court to be determined solely by P's express wishes, given that P is unlikely to have an understanding of the process. It was further submitted that, in a framework such as this, where there is no automatic referral to a court or tribunal, as under the MHA for example, a more generous approach must be taken in exercising judgment as to whether there is reason to think that P would wish to exercise his or her right to appeal. Ms Butler-Cole relied, by way of analogy, on the observation of Black LJ in Re X, supra, at para. 103, (when considering the circumstances in which P should be a party to proceedings concerning deprivation of his or her liberty), that:

"…it is not appropriate for P's participation in the proceedings to turn in any way on whether he wishes to participate or, indeed, on whether he expresses an objection to the form of care that has been provided or proposed. There is too high a risk of slip ups in such a scheme. Article 5 requires a greater guarantee against arbitrariness."

Ms Butler-Cole therefore submitted that the test of "it appearing that P wishes to exercise her right of appeal" is the correct one provided it is understood as including cases where it appears that P "would wish" to appeal.

58. The litigation friends for the four other applicants expressed the view, through Ms Butler-Cole, that there are likely to be cases where concerns arise as to whether the Part 8 review procedure will be sufficient, or whether negotiation will be enough to ensure that conditions on standard authorisations are complied with and restrictions kept to a minimum. There will, however, be other cases where it is reasonable to attempt to resolve concerns through these alternative channels, but where it subsequently becomes appropriate to issue s.21A proceedings as P continues to express a preference not to be cared for in a particular placement.
59. In her reply to the submissions filed by the local authorities and the CCG, Ms Butler-Cole identified the nub of the dispute between her clients and the statutory bodies as being whether agitated or distressed behaviour displayed by a person with dementia can be construed as evidence of objection to the arrangements for their care, or whether it is merely a manifestation of their illness. Ms Butler-Cole submitted that drawing such a distinction is neither possible nor appropriate. If a patient with dementia is trying to climb out of a window to leave a care home, that is an expression of a wish by that patient. The fact that, were it not for P's mental impairment, she would not be seeking to leave is irrelevant. Were it not for the impairment, she would not be in the care home at all. Having said that, the four other applicants accept that a level of inquiry is required in dementia cases where P is not expressing an obvious wish to leave since, for example, agitation or distress may be linked to other identifiable or specific causes.
60. In further written closing submissions following the response of Mr. Patel on behalf of the Official Solicitor, Ms Butler-Cole, on behalf of the four other applicants, firmly rejected the new argument advanced in the Official Solicitor's response. She submitted that the decision to issue s.21A proceedings could never be a best interests decision. Access to a court is an absolute and unqualified right under Article 5(4) and the decision to exercise such a right cannot be delegated to a third party who could choose to go against the wishes of the right-holder. To permit such a conclusion would mean that rights had a different character for mentally disabled people, compared to others and that an RPR would be entitled to refrain from issuing proceedings even though one or more of the qualifying requirements under Schedule A1, which are fundamental to the legality of a deprivation in this context, are not met. Ms Butler-Cole reminded the court of its observation in Re AJ at para. 88, that:

"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 [in Cheshire West (at paragraph 36)], 'the whole point about human rights is their universal character'."

The fact that para. 7.3 of the DOLS Code of Practice states that the best interests principle applies to RPRs as it does to others, does not assist, submitted Ms Butler-Cole. There is a difference between supporting P to exercise a right, and making a best interests decision on P's behalf, and the particular decision whether to issue s.21A proceedings falls into the former category whoever is making it. Ms Butler-Cole drew attention to a number of other problems and anomalies that would arise were the court to accept the Official Solicitor's submission on this point. She concluded the Official Solicitor's new position offends against the fundamental principle of the universality of human rights, is internally inconsistent, creates unnecessary ramifications within the DOLS scheme that will lead to delay and is not mandated by the statutory provisions.

(3) The Respondents' Positions

61. On behalf of the local authorities, Ms Davies emphasised the practical consequences of the approach advanced on behalf of the applicants, which would be potentially significant, particularly in the context of the increased level of DOLS applications following the Cheshire West decision in an economic environment where a local authority might be subject to significant cuts. Developing this point in her closing submissions, the local authorities rely on the margin of appreciation principle, which defers to the State's decision-making even in cases involving positive obligations in circumstances where there is a balance to be struck between protecting the rights of the individual and the interests of the wider community. In the present context, Ms Davies submitted that the balance has been struck by the statutory scheme which provides for extensive and regular administrative authorisation, the provision of representation and advice, (including, following Re AJ, the duties imposed on local authorities to ensure that the representation is effective), and the availability of a statutory mechanism which enables judicial consideration without any permission threshold for an application to be made. The applicant's propositions – and, in particular, the proposal advanced by the Official Solicitor – would have the effect of undermining the careful balance of allocated resources in pursuit of 21A applications which, in the case of local authorities, inhibit their ability to meet the social care needs of adults in their area.
62. The local authorities' submission was that there is no legal or practical reason to depart from the statutory language used in s.39D. The threshold for taking practical steps to help P exercise the right to apply to the court is whether it "appears" that there is a "wish" expressed to exercise that right. Ms Davies submitted that, under the scheme in the section, it is clear that this is to be an informed wish, the relevant information having been conveyed in accordance with s.39D(7). She further submitted that "wish" should be given its ordinary meaning – "want, desire, have an inclination" – and thus a positive determination by P is required. The appearance of an equivocal or ambivalent expression would not meet the threshold for the wish. Appearance has a relatively low threshold, but nonetheless it is a threshold and what appears to in whatever form must amount to a positive wish and, furthermore, a wish which, however expressed, must relate to the exercise of the relevant rights.
63. It was accepted on behalf of the local authorities, however, that the wish to exercise the right to apply to the court could be not only apparent from express words but also implied from behaviour. Whether it should be so implied is a matter for the judgment of the trained representative who must, Ms Davies submitted, be alert to the possibility that behaviour may be the result of a mental health condition otherwise unrelated to the issue of deprivation of liberty or the circumstances in which accommodation and care are provided. Equally, an express statement may not be determinative (either way) if there are circumstances which cause the representatives to consider that it may not truly represent a wish. The IMCA's duties include advising and informing about the right to review under Part 8 of Schedule A1 and providing assistance to exercise that right if it appears that P wishes to do so. In a case where further inquiry would assist to determine whether P wishes appeal, Ms Davies submitted that the review mechanism may be capable of generating further professional opinion and in relation to assist in assessing these wishes as regards exercise of the s.21A right.
64. The local authorities firmly reject the Official Solicitor's "double negative" proposition that it is appropriate for an application to be made where it is not possible to be satisfied that P does not wish to exercise the right to apply. In written final submissions, Ms Davies submitted that an entitlement to take proceedings implies a positive obligation upon the State to enable such proceedings to be taken but not to require such proceedings in every case. That interpretation is, she submitted, consistent with Baroness Hale's observations in the H case at para. 23 of the judgment, and also the language of the European Court in Winterwerp at para. 60 of their judgment. The approach advanced by the Official Solicitor would have the effect of requiring that P's detention is brought before a court in every case, whether P wishes it or not. That is not consistent with the opportunity to take proceedings but much closer to a management system of judicial review. The need for "special safeguards" in the case of persons with mental illness in terms of the procedural balance is acknowledged but the local authorities' position is that the statutory scheme when viewed as a whole contains sufficient safeguards. It is the scheme as a whole which falls to be considered when assessing human rights compliance. The question for the Court is therefore, in the local authorities' submission, whether the statute is deemed as a whole to provide sufficient access to the court, including "special safeguards" in order to comply with Article 5(4). That scheme includes provision for administrative authorisation, the appointment of a representative and possibly also an IMCA, and obligations including to advise, inform and assist in addition to the mechanism by which P's case can be taken to court on his behalf.
65. In her opening skeleton argument, Ms Davies submitted that, in the context of the statutory wording which includes the low threshold established by the use of the word "appears", the formulation by Ms Butler-Cole, on behalf of the four other applicants, that an application to the court should be made where it appears that P's "would wish" to exercise the right of appeal, is unnecessary. In closing submissions, however, Miss Davies conceded that, in reality, there may be little between the approach of the local authorities and that advocated by Ms Butler-Cole. Ms Davies observed that "would wish" is intended to encompass a greater range of indicators of wish than verbal expression, whereas the local authorities' contend that the "appearance" of a wish may present by means other than verbal expression, and need not present by any formal mechanism or specific form of words in order to "come to the attention of" the advocate.
66. In reply to the Official Solicitor's response, Ms Davies indicated that the Official Solicitor's proposal that the RPR should consider the question of accessing the court on a best interests analysis to be both unworkable and an unnecessary gloss on the statutory scheme which, Miss Davies submitted, is neither mandated by its language nor consistent with its effective functioning.
67. In a separate submission on behalf of the CCG in the case of JP, Ms Leonard made common cause with the local authorities in submitting that the test or issue of proceedings should be the ordinary meaning of the words in s.39D(8), so that an RPR, a s.39D IMCA or, as a last resort, the local authority should bring an application to the court under s.21A if it appears to them that P wishes to exercise the right to apply to the court. Ms Leonard identified a number of benefits to this preferred step, namely that: (a) it fits a natural reading of the subsection, (b) it can be read in a manner that is fully compatible with Article 5(4); and (c) in and of itself, it is compliant with Article 5(4). Such a reading, submitted Ms Leonard, strikes an appropriate balance between protecting incapacitated adults' Article 5 rights without overburdening already strained public resources with applications for persons who do not wish, or show any indication whatsoever of a wish, to exercise their rights.
68. Ms Leonard, on behalf of the CCG, also invited the Court to reject the Official Solicitor's "double negative" formulation on the ground that it effectively introduces a presumption that P wishes to exercise the Article 5(4) right unless the RPR is satisfied that he or she does not. Miss Leonard submitted that such a presumption is not supported either by the Convention or by the MCA and would be tantamount to incorporating a right to automatic judicial review for incapable persons deprived of their liberty under the DOLS. It is inconsistent with the wording of s.39D(8), and also with European and domestic case law. Furthermore, Ms Leonard submitted that, as well as placing an intolerable burden on already stretched public resources, the Official Solicitor's proposed test carries a real risk of reducing the protection offered by Article 5(4) since the large number of applications that would ensue would impede access to the court by applicants who have a real prospect of success.
69. Ms Leonard made similar submissions to those put forward by Ms Davies on the proposal advanced by Ms Butler-Cole that an application should be made where P "would wish" to appeal to the court. In the alternative, Ms Leonard submits that, if the court is minded to agree with Ms Butler-Cole's approach, there must be some positive evidence that P wishes to exercise his or her Article 5(4) rights to trigger the duty to make an application. The duty cannot be triggered by vague and purely hypothetical and subjective considerations on the part of the RPR.
70. In closing submissions, Ms Leonard emphasised that the scheme established by Schedule A1 and the other relevant provisions of the MCA should, as Ms Davies submitted, be considered as a whole. The safeguards within the process of authorising the deprivation of liberty to ensure that it is lawful are all relevant. She also underlined the importance of considering the context of P's words and behaviour, having regard to the fact that the test is whether P wishes to go to court and not simply whether he/she objects to a placement. What is required is a reasonable belief, having considered the totality of the reasonably ascertainable evidence, that it appears that P wishes to apply to the court. It is not sufficient for the RPR and IMCA to err on the side of caution. The CCG disputes the interpretation of the words "in particular" in s.39D(7) and (8) advanced on behalf of the Official Solicitor. It is submitted that these words simply identify the particular duties on the IMCA arising under those subsections.
71. In a final "reply" to the Official Solicitor's "reply", Ms Leonard, on behalf of the CCG, opposed the suggestion that a decision by an RPR whether or not to apply under s.21A is a best interests decision, deploying similar lines of argument to those advanced by Ms Butler-Cole as recited above.

Discussion and Conclusion on the General Issues.

72. There is, in my judgment, an important distinction between the roles of the RPR and the s.39D IMCA. The RPR has a wide role to represent and support P in matters relating to or connected with the Schedule. The s.39D IMCA's role is much more narrow. As I explained in Re AJ, that role is confined to the specific duties identified in s.39(7), (8) and (9). This distinction is important in interpreting the language used in the statute. In particular, one cannot apply the language used in the statutory provisions or DOLS Code of Practice concerning the RPR to the role and duties of the s.39D IMCA or vice-versa. One particular example of this is the use of the word "appears" in s.39D(7) and (8). The fact that the s.39D IMCA's obligation to take practical steps to help P or the RPR apply to the court is described as arising if it "appears" they wish to do so has no bearing on the extent of the RPR's obligations, which are described in wholly different terms.
73. Once appointed, an RPR is under an obligation to represent and support P in matters relating to or connected with the schedule. This obligation includes taking all steps to identify whether P wishes to exercise the right to apply to the Court of Protection, or the right to review under Part 8 of the Schedule. If the RPR concludes that P wishes to apply to the court, it is the RPR's duty to ensure that the application is brought. In doing so the RPR should, however, bear in mind the provisions of paragraphs 10.5 and 10.6 of the DOLS Code of Practice. Where possible, concerns about the deprivation of liberty should be resolved informally, including under the review process of Part 8. The aim is to limit applications to the court to cases that genuinely need to be referred to it. On the other hand, as deprivation of liberty is at stake, people should not be discouraged from making an application to the court if it proves impossible to resolve concerns satisfactorily through other routes in a timely manner.
74. Where the RPR concludes that P wishes to apply to the court it is, in my judgment, not the function of the RPR to consider whether such an application would be in P's best interests. I reiterate what I said in Re AJ at para. 88.

"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. . . 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'. "

75. As the judgment makes clear, this conclusion was in accordance with the submission then made on behalf of the Official Solicitor as litigation friend for AJ, represented, as it happens, by Ms Butler-Cole. I reject the contrary submission now advanced by the Official Solicitor on behalf of RD, and I accept the submissions now advanced by Ms Butler-Cole on behalf of the other four applicants, and by other representatives on behalf of the respondents.
76. In seeking to identify P's wishes, 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, as Ms Leonard and Ms Davies emphasise, 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.
77. On the other hand, I accept the submission by Ms Butler-Cole that, 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.
78. In addition, however, the RPR's obligations in supporting P in matters relating to and connected with the Schedule include, in my judgment, assessing for himself whether an application should be made to the court, independent of any wishes expressed by P. The RPR is entitled under s.50(1)(a) of the MCA to apply to the court without obtaining the court's permission. The terms in which s.50 is drafted to my mind make it clear that this right to apply is independent of the right enjoyed by P himself: see AB v LCC and Another [2011] EWCOP 3151 per Mostyn J. The DOLS Code of Practice confirms that, once a standard authorisation has been given, P and the RPR each has a right to apply to the court to determine any question relating to the matters set out in s.21A(2) and repeated in para. 10.2 of the DOLS Code of Practice. It follows, in my judgment, that, as part of his obligation to represent and support P in matters relating to or connected with Schedule A1, the RPR, in addition to identifying what P wishes or would wish, must assess for himself the matters identified in s.21A(2), namely: (a) whether P meets one or more of the qualifying requirements for deprivation of liberty as defined in Part 3 of the Schedule, (b) the period for which the standard authorisation is to be in force, (c) the purpose for which that authorisation is given; and (d) the conditions subject to which that authorisation is given.
79. If the RPR concludes that one or more of the qualifying requirements are not satisfied, or the period of or purpose of the authorisation, or the conditions attached to it, are not in P's best interests, the RPR has a right to apply to the court. In deciding whether to make such an application, the RPR must again bear in mind the provisions of paras. 10.5 and 10.6 of the Code of Practice so that, where possible, concerns about those matters should be resolved informally. But the qualification in the second sentence of para. 10.6 applies as much to the RPR as it does to P. The RPR should not be discouraged from making an application to the court if it proves impossible to resolve concerns about P's deprivation of liberty satisfactorily through other routes in a timely manner.
80. In my judgment, when deciding whether, independent of P's wishes, an application should be made to the court under s.21A, the RPR is bound to apply the best interests principle. The matters listed in s.21A(2) and in para. 10.2 of the DOLS Code involve, inter alia, an assessment relating to best interests. The question whether the best interests requirement is satisfied obviously involves an assessment of best interests – the requirement will only be met if, inter alia, "it is in the best interests of the relevant person for him to be a detained resident". In addition, however, any assessment of the period of, purpose of or conditions attached to an authorisation will equally involve consideration of P's best interests. This, to my view, is consistent with para.7.3 of the DOLS Code of Practice. Best interests is, therefore, integral to the decision by the RPR whether or not to apply to the court himself under s.21A.
81. In short, the best interests principle does not apply where the RPR is facilitating P's wish to apply to the court, but it does apply when the RPR himself is deciding whether or not to apply.
82. I add that the RPR must also have regard to s.1(6) of the MCA – the need to have regard to whether the purpose for which the act (in this case, the deprivation of P's liberty) is done can be as effectively achieved in a way that is less restrictive of P's rights and freedoms of actions. Although that is not spelt out in terms in the DOLS Code of Practice, the cardinal principles in s.1 of the MCA apply to anyone who does an act or makes a decision for or on behalf of a person who lacks capacity.
83. In contrast to the RPR, the role of the s.39D IMCA is much more restricted. It is defined in s.39D (7), (8) and (9). Under s.39D(7), the role is to take practical steps to help P and the RPR understand the effect, purpose and duration of the authorisation and any conditions to which the authorisation is subject; the reason why the relevant assessors concluded that P met the qualifying requirements; the right to apply to court and the right to review under Part 8; and how to exercise those rights. Under subsection (8) the IMCA is required to take such steps as are practical to help P and/or the RPR exercise the right to apply to the court or the right of review if it appears to the IMCA that P or the RPR wishes to exercise the right. If he helps P or RPR to exercise the right of review under Part 8, he may, under subsection (9), contribute to that review.
84. The language used in these statutory provisions is, to my mind, important. The obligation on the IMCA to take steps to help P or the RPR apply to the court only arises where it appears that P or the RPR wishes to apply. When P is unable to express a wish, either verbally or through behaviour, it is not the function of the IMCA to analyse whether P would wish to apply. That is a matter for the RPR. Equally, in my judgment, it is not the role of the IMCA to consider whether there is any other reason to apply to the court to consider the questions in s.21A(2). That is also a matter for the RPR.
85. If the RPR carries out his obligations in the way described, assisted where appropriate by the IMCA, P's rights under Article 5(4) will be fully respected. I do not accept the Official Solicitor's submission that it is appropriate or necessary for the RPR to apply to the court unless satisfied that P does not wish to exercise that right. I agree with the submissions put forward in response by the other parties. As Ms Leonard submitted, this "double negative" formulation would effectively introduce a presumption that P wishes to exercise the Article 5(4) rights unless the RPR is satisfied that he/she does not. As Ms Leonard further submitted, that presumption is supported neither by the European Convention of Human Rights, nor by national legislation, and would, in my judgment, be tantamount to incorporating a right to automatic judicial review for incapable persons deprived of their liberty under the MCA. As Baroness Hale observed in the H case, there is no support for such a presumption in the Strasbourg jurisprudence or elsewhere, and in my judgment it would be both unnecessary and unworkable. The statutory scheme, as a whole, set out in the MCA, as analysed above, guarantees that P's rights under Article 5(4) are adequately protected.
86. I therefore suggest the following approach be adopted by RPRs and IMCAs in these cases. In setting this out I am drawing substantially on the guidance proposed by Ms Butler-Cole and Miss Leonard to whom I am very grateful.

(1) The RPR must consider whether P wishes, or would wish, to apply to the Court of Protection. This involves the following steps:

(a) Consider whether P has capacity to ask to issue proceedings. This simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements. It is a lower threshold than the capacity to conduct proceedings.

(b) If P does not have such capacity, consider whether P is objecting to the arrangements for his/her care, either verbally or by behaviour, or both, in a way that indicates that he would wish to apply to the Court of Protection if he had the capacity to ask.

(2) In considering P's stated preferences, regard should be had to:

(a) any statements made by P about his/her wishes and feelings in relation to issuing proceedings,

(b) any statements made by P about his/her residence in care,

(c) P's expressions of his/her emotional state,

(d) the frequency with which he/she objects to the placement or asks to leave,

(e) the consistency of his/her express wishes or emotional state; and

(f) the potential alternative reasons for his/her express wishes for emotional state.

(3) In considering whether P's behaviour constitutes an objection, regard should be had to:

(a) the possible reasons for P's behaviour,

(b) whether P is being medicated for depression or being sedated,

(c) whether P actively tries to leave the care home,

(d) whether P takes preparatory steps to leave, e.g. packing bags,

(e) P's demeanour and relationship with staff,

(f) any records of challenging behaviour and the triggers for such behaviour.

(g) whether P's behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements.

(4) In carrying out this assessment, it should be recognised that there could be reason to think that P would wish to make an application even if P says that he/she does not wish to do so or, conversely, reason to think that P would not wish to make an application even though he/she says that she does wish to, since his/her understanding of the purpose of an application may be very poor.

(5) When P does not express a wish to start proceedings, the RPR, in carrying out his duty to represent and support P in matters relating to or connected with the Schedule, may apply to the Court of Protection to determine any of the four questions identified in s.21A(2) i.e. on the grounds that P does not meet one or more of the qualifying requirements for an authorisation under Schedule A1; or that the period of the standard authorisation or the conditions subject to which the standard authorisation is given are contrary to P's best interests; or that the purpose of the standard authorisation could be as effectively achieved in a way that is less restrictive of P's rights and freedom of action.

(6) Consideration of P's circumstances must be holistic and usually based on more than one meeting with P, together with discussions with care staff familiar with P and his/her family and friends. It is likely to be appropriate to visit P on more than one occasion in order to form a view about whether proceedings should be started.

(7) By way of an alternative to proceedings, it may be appropriate to instigate a Part 8 review, or to seek to work collaboratively with the family and the commissioning authority to see whether alternate arrangements can be put in place. Such measures should not, however, prevent an application to the court being made where it appears that P would wish to exercise a right of appeal.

(8) The role of the IMCA appointed under s.39D is to take such steps as are practicable to help P and the RPR understand matters relating to the authorisation set out in s.39D(7)(a) to (e), and the rights to apply the Court of Protection and for a Part 8 review, and how to exercise those rights. Where it appears to the IMCA that P or the RPR wishes to exercise the right, the IMCA must take all practical steps to assist them to do so. In considering P's apparent wishes, the IMCA should follow the guidance set out above so far as relevant.

87. Finally, on the general issues arising, although I have in these proceedings considered, as a preliminary issue, the question whether applications in these proceedings are properly brought, this question should not normally be raised as a preliminary issue in every case, either on an application by the respondents to strike out the application or by some other process. Such a course would lead to unnecessary satellite litigation and would only add to the delays in, and burdens on, the Court of Protection.

Conclusions in the individual cases

88. In the light of these observations on the general issues, I now turn to consider the specific cases before me.

(1) RD

89. The Official Solicitor, through Mr. Patel, submitted that the application under s.21A on behalf of RD was properly brought. Mr. Patel invited the court to find that it was appropriate for the RPR to assist to bring the application because the fluctuating nature of her wishes meant that it was not possible for the RPR to be satisfied that RD did not wish to exercise her right pursuant to Article 5(4). I have already indicated when considering the general issues above that I do not consider this "double negative" formulation to be the right approach.
90. The position of the local authority in RD's case was that her expressions, verbal and behavioural, separately or cumulatively, do not cross the threshold for an application to be made to the court. Her wishes have fluctuated and, on occasions, she has expressed a wish to return to live at a property she used to occupy with her parents many years ago which is no longer available to her. It is possible, submitted the local authority, that the change of behaviour she presented is a symptom of her mental health condition and unrelated to any wish to leave B House.
91. I have read the various reports written by RD's RPR between September 2014 and July 2015. Without going into specific detail, I have not found clear evidence that RD ever wished to appeal to the court against the standard authorisation. Her presentation has followed the familiar pattern in which she appeared very unsettled at times in the early stages of her stay at B House, but has now, to a certain extent, settled down subsequently. I recognise, however, that it has been extremely difficult for the RPR in this case, as for all the RPRs and the s.39D IMCA in this case, to evaluate these decisions in the absence of any guidance up to this point. I therefore propose to request that RD's RPR reconsider the question of whether this application should proceed in the light of the guidance I have given above, and provide me with a decision on that question at the hearing provided for below.

(2) JB

92. On behalf of JB's s.39D IMCA, Ms Butler-Cole acknowledged that JB has not said that she wishes to live elsewhere or to challenge her DOLS authorisation. She does, however, frequently ask to leave the home and tries to open doors and windows to get out. Ms Butler-Cole submitted that there is therefore evidence on which the IMCA was entitled to form a view that it appeared that she wished to exercise a right of appeal to the court, having regard to her behaviour.
93. The position of the local authority, as expressed by Ms Davies, was that JB's verbal expressions are indicative of a wish not to exercise relevant rights and that, while her behaviour is relevant and is consistent on its face with a wish to leave the care home, it is equally consistent with her cognitive impairment and, in particular, her mistaken belief that she is obliged to pick up her children from school every afternoon. The local authority submitted that the IMCA was obliged to consider cognitive impairment as a potential cause for her behaviour and was wrong to conclude that it was to be interpreted as an expression of a wish to leave. To this Ms Butler-Cole responded that drawing a distinction between behaviour caused by dementia and behaviour which indicates a wish or preference on the individual's plight is often neither possible nor appropriate.
94. In the circumstances, it is in my view difficult for this court to judge whether at the outset of the proceedings JB wished or would have wished to bring the application. That is a matter for the RPR or IMCA as the case may be, and it is difficult, without a wholly inappropriate lengthy inquiry, to assess whether that decision was right or wrong. Since the IMCA took the decision to start proceedings, there have been two developments which impinge on this issue. First, there is now this judgment which considers the whole question of the issue, and has given certain guidance to be followed when RPRs and IMCAs are making the decisions arising in these circumstances. Secondly, in JB's case it is, as Ms Butler-Cole reiterated in her written submissions in reply, clear that JB is no longer objecting to her placement with the same force and regularity she was displaying earlier. In those circumstances, I again request in JB's case that the IMCA review her decision whether proceedings should continue, and provide me with her decision in the light of this judgment at the hearing provided for below.

(3) JP

95. When settled in her placement, JP does not express objection, but when agitated is likely to say that she wishes to return home although, as Ms Butler-Cole conceded, her belief about where home is has often failed to correspond to reality. Ms Butler-Cole submitted there was evidence upon which JP's RPR was entitled to form a view that it appeared that she would wish to exercise her right of appeal to the court. Although her requests to leave are inconsistent, they are frequent and they are clearly expressed. Ms Butler-Cole submitted that, while she may not be able to identify where her home is, she is able to say that she wants to be living elsewhere.
96. On behalf of the local authority, Ms Davies submitted that JP's RPR needed to consider whether JP's distressed behaviour, which was regarded as representing the wish to exercise the right under s.21A was, in fact, a symptom of her mental health condition. Ms Davies submitted that, as in RD's case, determining that JP wishes to leave the placement was an overly simplistic approach. She wishes not just to be in a different place, but also in a different time. Making links between her express verbal behaviour and her wish to exercise her relevant right is, in the local authority's submission, tenuous at best.
97. The local authority's position is supported in JP's case by the CCG. Miss Leonard submitted that, when JP is settled, she is compliant and does not object to her placement. She often expresses satisfaction with the circumstances. It is only when she is agitated or distressed that she expresses a wish to leave or tries to leave. The CCG submitted that her agitated behaviour appears to relate to her dementia rather than a wish to object to her placement. To this Ms Butler-Cole again responded that drawing a distinction between behaviour caused by dementia and behaviour which indicates a wish or preference on an individual's part is often neither possible nor appropriate.
98. Ms Leonard, on behalf of the CCG, also noted that prior to bringing the application JP's RPR had not, in fact, had a conversation with JP about whether she would like to apply to the court. It was only subsequent to making an application that JP was asked for the first time whether she would like a judge to consider her situation and she indicated that she wanted this. The CCG's understanding is that this conversation took place while JP was in an agitated state and, therefore, should be viewed with some caution.
99. As in JB's case, it is difficult for this court to assess whether the RPR's decision to start proceedings was appropriate, without conducting a full inquiry which, in my judgment, would be disproportionate for the reasons already explained. As in the cases of RD and JB, JP's RPR now has the guidance to consider as to whether or not these proceedings were properly brought. In the circumstances, I ask JP's RPR to review his decision in the light of this judgment and provide me with his decision updated at the hearing provided for below.

(4) EP

100. Ms Butler-Cole submitted that EP's views about her deprivation of liberty have varied markedly since her admission to the care home in May 2015. Initially, she strongly objected but within a few months had settled in and said she was happy to remain there. For example, on 25^th June 2015, she told her RPR that the care home might as well be a prison and that she wanted to go home, but within a fortnight, on 6^th July, she said she would like to live in a care home until she died. She continued to express a wish to leave on occasions, and when Miss Thompson spoke to her in October 2015, EP was clear that she did not wish to remain in the place, and had packed all her belongings into black bags in her wardrobe.
101. When the RPR discussed the possibility of an application to court, EP said she did not want to make an application, and did not think she should be under someone's "governance". Overall, however, Ms Butler-Cole submitted that in EP's case the RPR had reason to think that she would wish to exercise the right of appeal, given that she was still expressing a wish to leave from time to time.
102. The local authority's view in EP's case is that, at the time the application was issued, the RPR was entitled to conclude, by reference to her words and/or behaviour, that it was her wish to apply to the court. For this reason, the local authority has conceded the point in EP's case and the matter has returned to the local court for substantive hearing.
103. In my judgment, the local authority was right to make this concession. Although EP has said that she did not think she should be subject to the "governance" of the court, the RPR was, in my view, entitled to take the view that taking account of her words and behaviour overall, she wished or would wish to appeal against her authorisation. I consider in all the circumstances that it was not inappropriate for the RPR to make the application in the case of EP.

(5) JW

104. Ms Butler-Cole pointed out that, at the time of his admission to F Nursing Home in 2014, JW consistently objected to his placement, although there was no realistic option of an alternative placement, and certainly no option of a return home, and that his wife had, for understandable reasons, indicated that she could not continue to look after him. JW's RPR sought to improve his access to activities in the care home with some success, but JW continued to express unhappiness at his placement. On occasions, he expressed a wish to apply to the court, although this was not consistent. Ultimately, the RPR decided to apply to the court, although Ms Butler-Cole informed the court in her submissions that the RPR accepted that, with hindsight, it would have been better if proceedings had started sooner and in parallel with taking other steps, since there was reason to think that JW would want to exercise his right of appeal at an earlier stage, even though there was no realistic option of a return home.
105. In JW's case, the local authority conceded that JW consistently objected to his placement, and maintained a wish to go home. In his case: "home" was a real property which his wife continues to occupy, although in practice she was not able to look after him. The local authority, furthermore, acknowledged that the application to the court was issued following a period of time when alternative measures had been attempted to try to help JW to settle down. In this case, therefore, there had been informal steps to assist JW to settle, as recommended in the DOLS Code of Practice, and it was only when it was realised that these steps had not succeeded that the decision was taken to apply to the court. The local authority therefore accepted that the application in JW's case was properly brought.
106. I agree with this concession. In JW's case I consider that the RPR was right to bring the application. I can understand the RPR's comment that, with hindsight, she thinks that the application should have been brought at an earlier stage, but I would not criticise her or the other professionals for attempting to resolve JW's concerns informally in accordance with the DOLS Code of Practice.
107. In the three outstanding cases, I have therefore asked the RPRs, and in the case of JB, the IMCA, to reconsider their respective decisions in the light of the guidance in the judgment, and I propose to list the matter for a further hearing in a few weeks when they can inform me of their decisions and I can decide what further steps should be taken in these proceedings.