The long-awaited judgment from Baker J following up on AJ is now out: RD & Ors (Duties and Powers of Relevant Person’s Representatives and Section 39D IMCAs)  EWCOP 49. A full report will appear in the next 39 Essex Chambers Mental Capacity Law Newsletter, but in brief Baker J had to address the question of: “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?”
Having answered the question in characteristically erudite fashion, Baker J then very helpfully gave (at para 86) general guidance for the future, reproduced below.
(1) The RPR must consider whether P wishes, or would wish, to apply to the Court of Protection. This involves the following steps:
(a) Consider whether P has capacity to ask to issue proceedings. This simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements. It is a lower threshold than the capacity to conduct proceedings.
(b) 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:
(a) any statements made by P about his/her wishes and feelings in relation to issuing proceedings,
(b) any statements made by P about his/her residence in care,
(c) P’s expressions of his/her emotional state,
(d) the frequency with which he/she objects to the placement or asks to leave,
(e) the consistency of his/her express wishes or emotional state; and
(f) 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:
(a) the possible reasons for P’s behaviour,
(b) whether P is being medicated for depression or being sedated,
(c) whether P actively tries to leave the care home,
(d) whether P takes preparatory steps to leave, e.g. packing bags,
(e) P’s demeanour and relationship with staff,
(f) any records of challenging behaviour and the triggers for such behaviour.
(g) 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 reason 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.