This case highlights the importance of a proper capacity assessment and discussions with P regarding best interests. Mr Justice Hayden has also clarified (a) the purpose of s21A proceedings and (b) that they should be determined ‘speedily’ (under Article 5(4) ECHR). We summarise the decision and what to take away.

Background of the case

DP v London Borough of Hillingdon concerned a gentleman, ‘DP’, aged 72 years old with a diagnosis of organic personality disorder and catatonic disorder. He had been a resident at NN care home since June 2004 with a standard authorisation in place. He brought s21A proceedings to challenge the authorisation. He argued that the mental capacity assessment was insufficient to show that he lacked capacity to consent to his placement and that the court should terminate the authorisation immediately. The court made no order in respect of the authorisation, made a declaration pursuant to s.48 that DP lacked capacity to make certain decisions, and gave directions for further evidence. DP appealed against the s48 declarations and the failure to terminate the authorisation. Mr Justice Hayden heard the appeal.

Practical consequences of the case

The key points made by the Judge are as follows:

• Narrow remit: On s21A applications, the court’s purpose is to determine questions as to whether the qualifying requirements are met and to consider varying or terminating the authorisation in light of its determination of the questions, on the evidence it has before it.    
• Speed: Since they do not require the same level of investigation or evidence as s16 welfare proceeding, the overall proceedings should be shorter, less timely and less expensive for parties.
• Evidence for capacity issues: Capacity issues should be determined without delay. Where evidence is considered insufficient to make s15 declarations further evidence should be obtained ideally by reverting to the clinician who provided the assessment rather than commissioning s49 reports. This should avoid the expense of experts and speed up the process.
• The use of section 48: Hayden J stated section 48 is to be used for interim orders and decisions only. It cannot be used – as it so frequently has been – for interim declarations.
• Capacity thresholds: s48 decisions have a lower threshold than s15 declarations. Hayden J’s comments regarding s48 are obiter as the appeal was allowed on the basis that the Judge erred in seeking to apply s48 at all, but they are nonetheless very helpful guidance.

What to take away

In theory all of this should mean that s21A proceedings are now determined with more speed and efficiency. Although, the reality is that, whilst it is likely that we will see capacity declarations made more swiftly, it is unclear whether in practice there will be any change to the speed with which the best interests element of proceedings are determined. Parties will presumably continue to argue that they require further evidence before s16 decisions can be made. This will require close- and sometimes firm- management by the court. Capsticks will make legal submissions at relevant junctures to ensure that the courts treat these cases proportionately.

In practice, you should:

1. Clearly explore P’s wishes and feelings in relation to the issues.
2. Not inadvertently use best interests in order to determine capacity.

Also keep in mind that:

1. The Court does not ‘take over’ the authorisation of P’s deprivation of liberty in s21A applications
2. The Standard Authorisation remains the lawful authorisation of the deprivation of liberty; and
3. The Court can extend a Standard Authorisation or vary its conditions or terminate it.

How Capsticks can help

We have a specialist health and social care advisory team of over 20 specialist lawyers, advising clients across the country on all issues relating to consent, capacity and medical treatment. In addition to advising clients and supporting them in Court proceedings and commissioning disputes, we also regularly provide training and workshops in relation to the Mental Capacity Act, the role of the Court of Protection and the Deprivation of Liberty Safeguards process. We also offer fixed fee services for COPDOL11 applications and can assist you with planning and preparation for the Liberty Protection Safeguards.

If you would like to understand the impact of this decision on the care you deliver, please contact Francis Lyons, Charlotte Radcliffe, Tracey Lucas or Adam Hartrick, to find out more how Capsticks can help.