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Has the RD decision had a chilling effect on Article 5 challenges?

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January 6, 2017 | By Michael Kennedy |

January 6, 2017 | By Michael Kennedy |

Note: I will use the term ‘detention’, generally, as it is shorter than ‘deprivation of liberty’ and it applies across the 2 relevant pieces of legislation referred to below.

Introduction

Sometimes, a judgment is seized upon and used to fit an agenda and the detail is lost. I think that there is a real danger that Baker J’s recent judgment, in the case of RD, is being misinterpreted and is being used to reduce the number of challenges to detention by mentally disordered people – improperly so in some cases. Given we are talking here of the fundamental right to liberty, that must be a real cause for concern.

These are not so much thoughts on the judgment itself – more my concerns as to how it is being received on the ground and what its impact might have on day-to-day practice.

The case of RD

Shortly before the Christmas break, a judgment was handed down in the Court of Protection known as RD [RD & others (duties and powers of Relevant Person’s Representatives and Section 39D IMCAS) v Herefordshire; Dorset and Bristol Councils and Bristol CCG [2016] EWCOP 49 ]. In that judgment, Baker J provided guidance as to when it would be appropriate to assist a mentally disordered person to appeal their detention and seek discharge from whatever facility they were in. The same Judge, in the case of AJ nearly two years earlier, had provided guidance on this same area of practice but in that case, the focus was entirely on the dangers of those responsible in assisting a detained person to bring a challenge failing to do so. This time, the focus was more on the problems which can be caused if a challenge is brought when it ought not to be.

The guidance is primarily aimed at certain statutory characters known as Relevant Persons Representatives (RPRs) and Independent Mental Capacity Advocates (IMCAs). The RPR was created specifically to assist in relation to a particular process for legalising the detention of certain people with mental disorder – the Deprivation of Liberty Safeguards process (DOLS). As the name suggests, the intention was that they would represent the person who was being deprived of their liberty. The IMCA was created to assist in a number of specific ways, including in relation to when a person is made the subject of the DOLS process.

Sometimes, the RPR is a lay-person, such as a member of the person’s family, but often they are a professional – either independent or employed by an advocacy organisation. The IMCA is always a professional. Largely, they are funded by local authorities and, from time to time, must tender for contracts to provide advocacy services in a local authority area. As a result, they have a close working relationship with statutory services. It is notable, in this context, that the state arm which authorises the detention of the person in question – is the local authority (in the terminology of the DOLS: the supervisory body). It is also of note that representative bodies of local authorities across England and Wales have made it abundantly clear that they do not feel that they can cope with implementing the DOLS process. As a result, they have become increasingly strident in their lobbying and, in the summer of last year, resorted to issuing legal proceedings against the relevant central government departments – insisting that they be better resourced to meet the demands involved.

One of the demands involved in the implementation of the DOLS process is responding to individual challenges against their use. That is to say, the main burden of implementation comprises the administrative process of lawfully detaining a person in the first place. An increasingly large part of the burden, however, comes from the resources which have to be committed to responding when a person so detained challenges their detention in court.

Local authorities have faced hugely increased numbers of people to put through the administrative process further to the wide definition of what amounts to a deprivation of liberty provided by the Supreme Court in Cheshire West, nearly 3 years ago now. Since that time, the number of people caught by the definition continues to rise – with decisions such as Birmingham City Council v D (adolescents) and SRK (those being provided with privately funded care at home). In short, there is no prospect of the numbers of people requiring the application of the process coming down: they only appear to rise and rise. Pleas to the court that the financial impact of these decisions be taken into account have been rejected: a deprivation of liberty must be lawful and so a process must be followed.

It follows that the numbers of people challenging their detention are likely to increase roughly in line with the above and so applications to the Court of Protection, to remove the authorisation for detention, have significantly increased over the same period. The body which must respond to such challenges is the local authority and the resources required to do so are very significant. No wonder that local authorities are increasingly seeking to stem the tide. If they cannot do anything about the numbers of people brought into the system, perhaps they can at least try to reduce the number of challenges?

Stemming the tide of challenges

Here is where RD comes in. It provides an opportunity for local authorities to liaise with their partner advocacy organisations and say: here – we told you, you were bringing too many challenges, the Court says that you should use mediation processes and Part 8 reviews instead of going to court. That is not what Baker J says in RD, but I am afraid that is the gist that some advocacy organisations are being given to understand that that is what it says.

Clearly, local authorities are entitled to query whether applications made on behalf of detained people, by professionals in their area, are being properly brought as there is a threshold over which a person must step, before it can be considered right to bring a challenge. That threshold is, however, low and I am concerned that an attempt is being made to raise it – in a way which is not supported by the guidance in RD.

I know of 2 advocacy organisations which have, as a result of RD, agreed joint policies with their respective local authorities which, essentially, mean that the local authority becomes a gate-keeper as to when not only an application of challenge can be made, but even when a lawyer can be contacted with a view to them visiting the person concerned and providing a legal opinion as to whether an application ought to be made. What is clear to me, hearing more about the new approach is that the merit of the appeal is being conflated with the right to bring it. The adjudicator of that merit being the same arm of the state which is responsible for the detention itself – the local authority.

Parallels with the other way in which people with mental disorder can be detained

Article 5 of the European Convention on Human Rights guarantees the right to liberty. A person can be deprived of their liberty if they fall into one of a number of categories – mental disorder being one. Then, a process has to be put in place to make such detention lawful. There are 2 administrative processes which can be used in our jurisdiction:  one provided by the DOLS process – which is attached to the Mental Capacity Act 2005 (the MCA); (2) one provided by the sectioning process under the Mental Health Act 1983 (MHA). The detained person then has a right of appeal and that appeal must be heard speedily. The appeal right is to a court or tribunal which has the power to restore them to liberty.

If a person is detained under the MHA, then they appeal to the first tier tribunal (mental health). If detained under the MCA, they appeal to the Court of Protection. In Article 5 terms, there is no distinction between these 2 judicial bodies but in other ways, they are very different indeed. The fact that they are so different is, in my view, one of the reasons why people are so reticent to bring an Article 5 challenge to the latter. In short, the tribunal is far less intimidating and the costs involved are so much lower, such that those assisting people to bring challenges to detention under the MHA (Independent Mental Health Advocates) are far less troubled about whether they should issue Article 5 proceedings on behalf of a detained person than their contemporaries under the parallel legislative scheme.

A key reason for the reticence in putting in a challenge to the Court of Protection is the reaction of the local authority to such an application. They can be critical and they are showing signs of feeling emboldened to do so post-RD. It is almost unheard of for the equivalent arm of the state (usually an NHS Mental Health Trust or a private hospital) to react to an application to the tribunal with any degree of criticism or concern; it is simply recognised that appeals will come and they don’t seek to go behind them. The reality is, however, that that’s because the hospitals in question are better resourced and (critically) the time and money they need to direct to responding to such a challenge is a fraction of that facing a local authority, when a s.21A challenge is lodged in the Court of Protection. Whether a ‘first tier tribunal (mental capacity)’ would be the better forum for Article 5 challenges arising out of detention under the MCA is, therefore, one of the issues the Law Commission is currently grappling with and we will have to see what is published in 2 months time. That is when the Commission will publish a draft Bill which will bring an end to DOLS and perhaps an end to s.21A and so much of this whole area of practice will soon change in any event.

Certainly, when it comes to assessing whether an appeal ought to be put in for someone who lacks the capacity to apply themselves, an IMHA can be relatively relaxed, knowing that the test set by the House of Lords in the case of H [R(H) v Secretary of State for Health [2005] UKHL 60] is fairly straightforward and the threshold is set pretty low.

Conclusion

It must be right that RPR’s and IMCA’s are given guidance as to when an Article 5 application should and should not be made for persons lacking capacity to make the decision to do so themselves. As is pointed out by Baker J, in his decision, little guidance is provided in the Code of Practice or elsewhere and so it is helpful for the Court to fill the gap.

The problem is that increasingly stretched local authorities are so desperate for some respite to the pressure being mounted upon them, that they are seeking to stem the flow of applications. There is some evidence that the relevant DOLS teams, within local authorities, are essentially telling advocacy organisations that they must check with them before an application is made and that (in almost all cases) time should first be spent trying to mediate the dispute between the person and the mental health professionals concerned by way of meetings and other non-court based methods of resolution, such as a Part 8 Review (Part 8 of the DOLS scheme). Only after having exhausted all these methods, will the advocate be permitted to contact a lawyer and / or issue a s.21A challenge.

If it is the case that local authorities are becoming the gate-keepers to legal advice and to the court, then that is a very worrying development. We can only hope that this reaction to the judgment is short-lived and that advocacy organisations will, over time, have the opportunity to absorb the full extent of the guidance in it and politely but firmly reject any attempt to deter them from bringing challenges where it is right that they do so. The position (in terms of the direction of travel) will, in any event, change significantly in a matter of weeks with the publication of the draft Bill but we will of course have s.21A and this thorny issue with us for some time given the months (if not years) it will take to implement the new scheme.

Disclaimer: The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.

Michael Kennedy

Michael is a Barrister within our Court of Protection & Mental Health Law team and is also a Director of Switalskis. He is based at our Wakefield office but helps clients nationally and is recognised as a leading specialist in his field. He regularly lectures and trains a variety of legal professionals. Michael's profile