When can a S21A Challenge be made?
When a person (often referred to as ‘P’) lacks capacity and is deprived of their liberty under a DoLS (Deprivation of Liberty) authorisation in a care home, they have the right to challenge their DoLS and have these arrangements reviewed.
The reasons behind P’s objections do not determine whether a challenge can be made. For instance, a new placement proposed by P does not need to be viable; it is enough to say that they do not wish to be at the current property. Equally, P objecting as a result of their illness does not make their objection irrelevant – it is still an objection.
Usually, an application under section 21A of the Mental Capacity Act 2005 can be made to the Court of Protection by P, with the assistance of their Relevant Person’s Representative (RPR) or Independent Mental Capacity Advocate (IMCA), when P has expressed objections to their placement. Alternatively P’s family member, friend or the Local Authority can issue proceedings.
The role of the Court of Protection in S21A proceedings
The Court of Protection makes decisions on behalf of people who have been assessed to lack capacity to make decisions. The court will consider whether it is in P’s interests to be deprived of their liberty and will look at their current care arrangements to see whether such arrangements are in P’s best interests or whether alternative arrangements may be more suitable.
The Court of Protection can therefore make a wide range of decisions in respect of P’s standard authorisation. For example, P may be living in a care home where they receive 24 hour care and are not free to leave by themselves, but it may be decided that it would be in P’s best interests to live in a less restrictive placement, such as supported living or even returning home to their original property in the community. It is the role of the Local Authority in proceedings to present what options are available to the court and carry out a best interest analysis in respect of the options.
Alternatively, the Court of Protection may decide that it is in P’s best interests to remain at their current placement but that a condition should be attached to the standard authorisation to make P’s care or living arrangements less restrictive.
Throughout the proceedings, the Judge will look at all the evidence, such as P’s wishes and feelings, views of the Local Authority and often P’s family members. The Judge has to make its decision on what is in P’s best interests and can only make such decisions out of the options that are available.
How is P involved in the proceedings?
Although P may be assessed to lack capacity to make decisions and conduct proceedings, their wishes and feelings should still be voiced throughout the proceedings. A Litigation Friend or an Accredited Legal Representative helps to achieve this.
A Litigation Friend can be a family member or friend, however as the Litigation Friend is conducting proceedings on behalf of P, they must be able to conduct proceedings competently and fairly and ensure they do not hold strong views about what they think should happen. It is therefore not always appropriate for a family member or friend to be appointed as Litigation Friend. If there is no one else suitable and willing to act as Litigation Friend, the Official Solicitor will usually be appointed to represent P’s interests. P’s firm of solicitors will then usually liaise with the Official Solicitor throughout the proceedings and confirm their instructions.
Funding
If P is objecting to their placement, they should be automatically eligible for non-means-tested Legal Aid, regardless of their financial situation.
If you would like to discuss this article, or require further information or advice please do not hesitate to contact our Court of Protection Health and Welfare department on 0344 326 0049 or email COP@ramsdens.co.uk
The above article is for illustrative purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any part of the information given.