Care home briefing 164 – When is it necessary to apply to the Court for a review of a DoLS authorisation?
Section 21a of the Mental Capacity Act enables the Court of Protection to review DoLS authorisations. Applications for such views could be made by the relevant persons representative (RPR), their independent mental capacity advocate (IMCA) or the local authority.
The Court has recently considered five test cases involving elderly people. In particular, the Court has considered the level of objection to the DoLS authorisation that needs to be evidenced by the service user (‘P’) so as to raise the possibility for the need for an application to the Court.
The Judge considering the case, Mr Justice Baker, has provided useful guidance as follows:
1. The RPR must consider whether P wishes, or would wish, to apply to the Court of Protection. This involves the following steps:
- Consider whether P has capacity to ask to issue proceedings. This simply requires P to understand that he/she should not be subject to his/her current care arrangements. It is a lower threshold than the capacity to conduct proceedings.
- 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:
- Any Statements made by P about his/her wishes and feelings in relation to issuing proceedings.
- Any Statements made by P about his/her residence in care.
- P’s expressions of his/her emotional state.
- The frequency with which he/she objects to the placement or asks to leave.
- The consistency of his/her express wishes or emotional state; and
- 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:
- The possible reason for P’s behaviour.
- Whether P is being medicated for depression or being sedated.
- Whether P actively tries to leave the care home.
- Whether P takes preparatory steps to leave, e.g packing bags.
- P’s demeanour and relationship with staff.
- Any records of challenging behaviour and the triggers for such behaviour.
- 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 reasons 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.
The guidance will obviously be helpful in considering applications to the Court.
For more information or guidance, please contact:
Partner and Head of Healthcare – Providers
T. 020 7227 7282
 RD and Others  EWCOP 49
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.