Jill 00:00:16.860

Hello, I'm Jill Baker and would like to welcome you to Hempson's series of podcasts which look at welfare cases in the Court of Protection. These podcasts are intended for social care providers. To give you a little bit of background, Hempsons are a leading health, social care and charity lawyers who work very closely with social care providers on the full range of legal issues they face. I'm now going to pass you over to our two experts, Rachael Hawkins and Liz Stokes, who are both members of Hempson's Health and Social Care Advisory Team and are very experienced on working on Court of Protection welfare matters.

Rachael 00:00:48.660

Hi, Jill. Thank you. So the social care sector often plays an understated role in welfare cases. So in this series, which covers the course of six episodes, the aim is to take you through the basics of Court of Protection welfare matters and delve into areas where providers are likely to be involved, what they should consider and how they can prepare. This episode is the fifth and penultimate of the series and will be an overview discussion looking at Section 21A challenges in the Court of Protection.

Liz 00:01:18.760

The first question really is what is a Section 21A challenge?

Rachael 00:01:23.060

Exactly. So broadly, Section 21A relates to Section 21A of the Mental Capacity Act 2005, which I'm sure all social care providers are familiar of, but they might not be very familiar with what Section 21A actually breaks it down to. So the easiest way to describe it is that they relate to challenges where you've got your individual who in previous episodes we've referred to as P, which is how they're coined in Court of Protection cases where they're deprived of their liberty in either a care home or a hospital, so a standard authorization applies. P has the right to have such arrangements reviewed, so they have the right to question the circumstances upon which they're deprived of their liberty and their care arrangements. And that review is either done by a court or a tribunal. Here we're looking at deprivation of liberty in care homes relating to social care providers. So it would fall to the Court of Protection to be that body, the judicial body, that scrutinises the arrangements and sees whether or not the qualifying criteria for Section 21A challenges are met.

Liz 00:02:26.560

So my understanding is that an application is made under Section 21A challenge when P is objecting to their deprivation of liberty or their care arrangements that are in place at the current time. What do you mean by objection? How would that be realised? How is that recognised?

Rachael 00:02:44.220

Yeah. So the key there is definitely the word objection. And the most common way that we would see it, and I know both ourselves have got cases dealing with this. A very common base for an objection is somebody asking to go back home or saying that they object in a sense, to living in the care home that they want to return to a family home or they want to live in a different type of accommodation model. So the objection can be wide as long as it's relating to the deprivation of liberty. The objection would be very personable to that individual, but the main basis for objection would be not wanting to reside where they are or wanting to change the care that they're receiving. And often the only way that the care can be changed is if they're in a different environment. So again, as I said before, the most common one is an individual wanting to live with a family member or returning to what they record as being in the family home, for example, with a spouse. But their care needs are such that a 24 hours package of care, for example, can't be provided in the community.

Rachael 00:03:46.700

Hence why actually their needs are better met in a care home. But that's all part of what would need to be explored through a Section 21 a challenge.

Liz 00:03:55.110

Okay, so we have a situation where someone's in an environment where they're subject to a deprivation liberty, they're objecting to their care arrangements, or they're making a request to go home, who would bring that challenge on behalf of an individual?

Rachael 00:04:11.120

So depending whether or not they've got capacity, P could actually bring that challenge themselves. More often than not because they're deprived of their liberty, and to be deprived your liberty, you're either unwilling or unable to consent to such arrangements, it often means that the individual lacks capacity. So it's somebody acting on their behalf who would bring the challenge. And most commonly that would be their relevant person's representative or an advocate. The process which will follow is that they would then instruct solicitors and they would almost be the go between, a legal team and the individual to ascertain wishes and feelings of the individual and bring about a challenge which reflects the views that the individual has expressed.

Liz 00:04:54.050

Who would be the other parties then, in a court application like that? Presumably you have P at the centre of the application and who else would be involved or likely involved?

Rachael 00:05:05.280

Yeah, so it depends on the circumstances of the case. But likely you would have P as the individual and then whoever is representing them. So say that could be their RPR, which in turn could lead to an instruction to the official solicitor to act as a litigation friend. They'll become a party sitting with P as an individual in their own right. And then you would have what are termed as respondents. So they're people who would respond to the application by way of having to respond to information provision to see whether or not the criteria has been met. They're most commonly for commissioners, so it could be an ICB if they fully fund CHC, or it could be a mixture. It could be the local authority as supervisory body because they put standard authorization in place, or it could be the local authority as a joint commissioner as well as supervisory body. If it's a trust case where you've got an individual who is subject to an authorisation in a hospital placement, but it's looking for a discharge and it could be that discharge arrangements are disputed. Where, for example, P might want to go to a certain placement, but the clinical discharge team and commissioners feel it's not in their best interest and they say that they should go somewhere else.

Rachael 00:06:16.520

Then the hospital trust could also be a party to proceedings as well. Obviously, the more parties to proceedings you have, the more costs increase. So the court would expect to see a proportionate approach and pragmatic dance as to not having too many public bodies. But if somebody has got a vital role and they're very much heavily involved, then they should also be joined. But fundamentally it will be commissioners and those delivering care, as well as P themselves. As we've discussed in previous episodes, it's very, very rare for a social care provider themselves to be joined as a party, but they're very much so captured in information provision we've looked at before.

Liz 00:06:55.250

So I was going to say, we've mentioned before that it's usually the social care providers become involved at the request of one of the parties to provide information or to provide updated disclosure or information around P. And you've talked about different parties. There's also family members that are often involved as parties as well, sometimes as well, aren't there?

Rachael 00:07:18.380

Yeah, that's a very good point. Certainly if you have a spouse or a sibling, for example, who isn't in a role of representative or anything, but is very heavily involved and wants to make sure that they have their wishes and feelings formally recognised, then they should be invited to be a party to proceedings as well.

Liz 00:07:38.160

Okay, so we've got parties and we've got an objection and the proceedings have been issued. How are these challenges progressed within the courts?

Rachael 00:07:46.420

So the point of Section 21A challenges is meant to be that it's very quick review. They're not meant to take a long time, they're meant to be very focused and look at the stipulated criteria. So within that you'll see that there'll be an initial directions set which fundamentally requires the exchange of evidence between the parties to proceedings. And the first piece of the most important evidence is from the Commissioner. So again, if it's a CHC funded individual, then that'd be a statement from the ICB, or if it is a local authority funded individual, the local authority would provide the statement and that statement would set out information on the individual's needs, their current accommodation basis of the objection, and then what's known as a balance sheet analysis. And that would include very much in a tabular format, the pros and cons to them staying where they are, and also all the different other types of options which the Commissioner has explored to try and satisfy the objection that's been brought. And once sufficient evidence has been exchanged and that could form multiple witness statements, it could include RTMs. It should be a very fluid process which could involve assessments and different social care providers.

Rachael 00:09:04.920

But once all the parties have done that information gathering, then you'd have an RTM, so a roundtable meeting at which the aim is to try and get a consensus on best interests. If a consensus can be reached, then that's put forward to the court for them to sign off on. If not, then the court would become the ultimate best interest decision maker. And they would say whether or not parties have sufficiently and robustly enough gone through the exercise of ascertaining wishes and feelings, going through the best interest checklist in the MCA and properly looked at options before making a determination on how the challenge will be settled.

Liz 00:09:41.410

And we've talked, I think before about best interest being essential to the point of Court of Protection proceedings, but I think we skipped a bit actually almost about the central pillar of capacity to all this as well in terms of assessing that and establishing that right at the beginning almost before you move on to best interests.

Rachael 00:10:00.730

Absolutely, yes. So you can't engage the jurisdiction of the Court of Protection unless an individual lacks capacity. You would need capacity evidence in respect to the residence and accommodation domain. You'd also need it in respect of conducting proceedings, which is something that the party representing P normally does, or whoever actually brings a challenge, they will provide the evidence. And then you might find during the course of proceedings that depending on what the challenge relates to, you might need to get capacity evidence on use of social media, for example, or contact with others. So whilst we've talked, there very quick overview about what a challenge involves, some of the more complex ones could actually have quite a lot of different webs spinning out to different things, which means that you need to get quite a lot of evidence. And you're absolutely right, capacity is something which should always remain under review in these cases. And if at any point changes and the individual has capacity, then if everybody agrees and the court approves it, then the jurisdiction of the court of protection falls away and the Section 21A challenge in effect becomes redundant because the individual can make their own decision about where they want to live and the care to receive.

Liz 00:11:10.440

Okay, so we've talked a bit about capacity and about best interests and the process for Section 21A. From a social care provider point of view, I think in previous sessions we've talked about how they might be involved, but this is the most likely, we think, Court of Protection process that a social care provider might become involved in. And just to recap, what sort of areas or how might a social care provider become involved in a section 21A challenge?

Rachael 00:11:38.480

So again, thinking about previous episodes, we've always talked and it's always been something which I find still find a bit incredulous, just how much the social care provider is actually on the periphery of proceedings. So the most common way that they'll be involved is via informal request for information provision. So that could be a commissioner asking their provider to provide daily care records, details of activity charts, how often they access the community, what they like to be engaged with, what support they need in the community, and then that feeds into the commissioner's consideration of alternative options. The provider might be required to provide more formal evidence. So through the provision of witness statements and giving evidence orally at hearings, which we looked at in our last episode. Another common way is social care providers actually attending roundtable meetings and around that table you should have the social care provider because they know P best, they know what they're like on a day to day basis. They can feed back their views or what they're like, as I say, is whether accessing community or their preferences for activity engagements or whether they actually like staying in their rooms or they prefer being in communal areas, for example. They'll be around the table, as would be any family members who've got an interest in the welfare, along with the commissioners.

Rachael 00:12:57.300

So that's another way that their input is really very useful to have because you get a true sense for the individual.

Liz 00:13:05.180

I think that's really helpful and I think that probably brings us to the end of talking about section 21A.

Jill 00:13:10.510

Yeah, thanks Rachael and Liz. Well, I certainly found that helpful and I think that overview discussion on 21A challenges in Court of Protection was another way of explaining to social care providers about how they can be brought into Court of Protection proceedings. I'm looking forward already to the final episode where we'll look at Liberty Protection Safeguards. Should any of our listeners have any comments, questions or suggestions for future episodes, please feel free to get in touch with me via email at j.baker@hempsons.co.uk.