The need for careful scrutiny: the dismissal of s.21A applications

An unusual appeal against dismissal of a s.21A application clarifies the (very limited) circumstances under which it could ever been appropriate to dismiss such applications on a summary basis, write the Court of Protection team at 39 Essex Chambers.

The underlying case in CB v Medway Council & Anor  [2019 EWCOP 5 (Hayden J) concerned a 91-year-old woman CB who did not like living in a care home and wished to return to her own home with a package of care. This was an arrangement that had been tried previously, including by way of 24 hour live-in care, but which had broken down. A s.49 report was prepared during the proceedings which concluded that CB lacked capacity by reason of dementia to make the relevant decisions about where she lived and what care she received. The consultant psychiatrist also opined, not having been asked nor having been provided with all the relevant evidence, that CB required 24-hour care which was likely to be best provided in a care home.

HHJ Backhouse had previously made typical directions requiring the local authority to file evidence about the likely package of care at home that could be put in place - CB having assets in the region of £2.5m and thus being able to afford substantially more care than the standard 4 daily visits usually offered by a statutory body. At a round table meeting before the hearing in respect of which the appeal was brought, the local authority and CB's representatives agreed that further investigations about the potential home care package would be made and a proper best interests analysis carried out by the local authority. An application was made to vacate the hearing so that these agreed steps could be taken. The court refused to adjourn the hearing, the judge wanting to hear from CB's nephew (who had not been party to the agreed plan) and raising a query about some of the further evidence that was to be obtained.

At the hearing, HHJ Backhouse heard directly from CM, who described the serious problems that had arisen the last time care at home had been attempted. Despite not having indicated to the parties that the judge was considering summary disposal, during an ex tempore judgment, HHJ Backhouse decided that the application would be dismissed, saying: 

The Official Solicitor is saying that as part of a belt and braces exercise, the court ought to see if it is possible for CB to go home as she would like to and in that sense, it would be in her best interests. It might be a less restrictive environment, although she would still have to be subject to restrictions on her liberty to prevent her wandering. 19. However, this is not the usual case which the court often sees where a return home with a live-in care package has not previously been tried and needs to be explored.  In this case, such a privately funded package has been tried.  If she returns home, there is a real risk the she will again not be properly cared for and will become aggressive or agitated, which carers will find very difficult to manage. ….22. All the evidence is that the care home is appropriate to meet her needs, and, indeed, CM says it is a very caring environment for her. Therefore, while I hear what the official solicitor says, I do not think that it is proportionate to make this Local Authority spend the time and cost of going through a balancing exercise which will tell me what I already know in terms of the difficulties, risks and cost of a package of care at home. In my judgment, the evidence is already there to show that the risks of returning home outweigh the benefits to CB of such a return. It is in CB’s best interests to remain where she is, properly looked after and safe. 

The Official Solicitor appealed on behalf of CB. The local authority took a neutral stance. Hayden J allowed the appeal, deciding that:

1. The judge had been right not to vacate the hearing. CB had been in the care home for some 14 months.

I cannot see how the timescales taken to address these issues can possibly be reconciled with CB’s own timescales. It is axiomatic that at 91 years of age CB does not have time on her side. Moreover, I feel constrained to say, that which I have already stated in several cases, delay is invariably inimical to P’s welfare. Timetabling and case management must focus on a sensible and proportionate evaluation of P’s interests and not become driven by the exigencies of the litigation. Whilst the Mental Capacity Act does not have incorporated in to it the imperative to avoid delay in the way that the Children Act 1989 does, the principle is nonetheless embraced by the Court of Protection Rules, which require the application of the “overriding objective”. In any event the avoidance of delay is a facet of CB’s Article 6 and Article 8 rights."  

2. In some cases, the possibility of giving summary judgment was a useful power that could avoid harm to P. However, notwithstanding these considerations, in CB's case HHJ Backhouse had gone beyond what was permissible. While it was theoretically possible that summary disposal might be appropriate in a case engaging Article 5, it was difficult to think of a factual scenario in which that would apply.  In CB's case, “what began as vigorous and robust case management tipped over...into summary disposal that [was] essentially unfair.”  In particular, there had been no oral evidence and no opportunity for the Official Solicitor to cross-examine the author of the s.49 report or the attorney. "Scepticism and ‘doubt’ [about the prospects of success of a home care package] is not sufficient to discount a proper enquiry in to such a fundamental issue of individual liberty." Further, "curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases." 

Comment

As the then-President, Sir Nicholas Wall, had observed in 2011 upon being invited summarily to dispose of a s.21 application that appeared on its face to be hopeless: 

the Act has laid down stringent conditions for the deprivation of liberty, and that the court cannot simply act as a rubber stamp, however beneficial the arrangements may appear to be for the individual concerned. In the instant case, A wishes to challenge the authorisation, which deprives him of his liberty. Parliament has decreed that he should be entitled to do so, and has created safeguards to protect those deprived of their liberty against arbitrary action.

A v A Local Authority [2011] EWCOP 727 at para 15

For those who had forgotten this key message, this new case is a very helpful illustration of the seriousness with which Article 5 rights must be considered by the Court of Protection. It is common for P to seek less restrictive care arrangements or a return home even though the professional advice does not support P's wishes. Even where there have been failed attempts in the past, it does not follow automatically that further attempts should not be made, and it is not appropriate for parties or the court to deal with matters on a summary basis without full and proper investigation and consideration of the options.  

All this should, however, be carried out in a timescale that is proportionate – where P objectd to the arrangements for his or her care or treatment, it cannot be right that 14 months later the court was still not in a position to determine matters. The reasons for the delay in this case are not apparent from the report, but was no doubt comprised of one or more of the following familiar features:

1. the initial DOLS authorisation being granted for a short period of say one or two months to allow alternative care planning to take place and the issue to be reconsidered;
2. when that does not result in any change to P's circumstances, a delay in applying to the court (particularly if the RPR is a person who supports the deprivation of liberty);
3. 8 weeks or more elapsing from the date of application to the obtaining of a s.49 report;
4. long delays in getting adequate alternative care plans prepared by the local authority, particularly where P is self-funding and so options other than a standard domiciliary care package can and should be investigated.

This article was written by the Court of Protection team at 39 Essex Chambers.