Until recently, there has been very limited guidance for Relevant Person’s Representatives (RPRs) and s39D Independent Mental Capacity Advocates (IMCAs) to rely on when determining when their duty to assist P to make an application to the court under s21A of the Mental Capacity Act 2005 (the Act) will arise. The court has now given detailed guidance on this topic following a test case in which Clarke Willmott represented three RPRs and a s39D IMCA in order to obtain much needed clarification in this area.
Following the Supreme Court’s decision in P v Cheshire West and Chester Council there has been a dramatic increase in the number of applications made to the Court of Protection pursuant to section 21A of the Act to challenge standard authorisations granted under Schedule A1 of the Act. Many of these applications are brought by the individual deprived of their liberty (P) with the assistance of their RPR or s39D IMCA.
RPRs, s39D IMCAs and local authorities all have positive obligations to assist P to challenge their deprivation of liberty in the court where appropriate and necessary. However, there has been very little guidance to support RPRs and s39D IMCAs to decide when their duty to assist P to make an application will arise. In circumstances where P is clearly and consistently objecting to their care arrangements it is clear that an application to the court ought to be made, but in many cases P does not clearly articulate their views or is unable to do so. Lack of guidance for RPRs and IMCAs as to how they ought to proceed in this situation has caused concern and confusion.
In the hope of gaining some guidance from the Court of Protection, we assisted three RPRs and as39D IMCA to bring four cases to the court’s attention and asked the court to consider the circumstances of these cases as part of a test case.
The question put to the court
The court was asked to consider:
When, if at all, does the requirement under Article 5(4) to assist P to exercise his or her right of appeal to the Court of Protection under s.21A of the MCA arise in cases other than those in which P expresses a clear and consistent objection to the arrangements for his/her care and treatment?”
The court gave very clear guidance as to when RPRs and s39D IMCAs should challenge standard authorisations in these circumstances and we have prepared a free information sheet outlining the court’s guidance.