In DP v LB Hillingdon  EWCOP 45, Hayden J has clarified what the court is to do on an s.21A application where it has doubt as to whether it can, on the evidence before, it be satisfied that P satisfies the DOLS capacity requirement. He also – and entirely separately – took the opportunity to clarify what had apparently become a tension in the authorities as to the circumstances under which it is appropriate for the court to proceed on the basis of the interim jurisdiction granted it under s.48.
The facts of the case are not relevant to the legal point that Hayden J was asked to consider, save that it is worth noting that amongst the deficiencies in the capacity evidence upon which the LB Hillingdon (as supervisory body) sought to rely were the fact that the doctor had not explained the purposes of his visit to P. The evidence that the first instance judge had before did not satisfy her that P lacked capacity on the balance of probabilities, although she considered that it did cross the threshold under s.48.
As Hayden J noted, citing Re UF  EWCOP 4289:
The Court’s approach to a Section 21A application is different to and distinct from its role in a standard welfare application. The Section 21A application is either to vary or to discharge a Deprivation of Liberty authorisation. In such applications, the task of the court is to evaluate the relevant qualifying requirements and to come to a view, on the available evidence, as to whether those requirements continue to be met.
He endorsed the position of both parties that an application made under s.21A did not permit the making of an interim declaration under s.48, notwithstanding such are frequently made to ‘hold the ring’ whilst the court is progressed. Importantly, Hayden J identified that there was, in fact, no need for such a declaration because, for so long as the DOLS authorisation is in place, it provides the authority for the deprivation of P’s liberty, and, whilst the court discharges its functions of determining questions relating to the authorisation, “the extant authorisation remains in force, without the need for any positive decision by the court. The court does not become responsible for authorising P’s deprivation of liberty upon the issuing of a s. 21A application. The court’s only function is to provide the review of the authorisation which is in force” (paragraph 45).
What the court has to do, Hayden J made clear, is to investigate the position (for instance in relation to uncertainty as to capacity) speedily (paragraph 41), so as to comply with Article 5(4) ECHR, and deploying its case management powers in Rule 1.3 of the Court of Protection Rules 2017 appropriately. At paragraph 41, Hayden J also observed that (on the facts of this case):
It was open to the Deputy District Judge, for example, to permit questions to be put to [the doctor who had conducted the capacity assessment] and/or, if necessary, to arrange for him to give evidence or revisit his assessment. I doubt that it was necessary to instruct a further expert on what is, when properly identified, an essentially uncomplicated issue i.e. does DP have capacity to decide to change care homes to be nearer to his friend Bill and, if not, whether it is in his best interests to do so.
Although, on the analysis above, it was not necessary for him to do so, Hayden J took the opportunity to resolve the perceived difference of judicial opinion as to the threshold to apply for purposes of s.48 MCA 2005, given its importance to practitioners on a day to day basis. Having done so, he made clear that the words in s.48 MCA 2005 require no gloss, such that the question remains throughout: is there reason to believe that P lacks capacity. That question, he observed at paragraph 62, stimulates “an evidential enquiry in which the entire canvas of the available evidence requires to be scrutinised,” and in which the presumption of capacity applies with equal force. Helpfully, he distinguished between the test in s.48 and the test in s.15 (paragraph 62(vi)):
The exercise required by Section 48 is different from that set out in Section 15. The former requires a focus on whether the evidence establishes reasonable grounds to believe that P may lack capacity, the latter requires an evaluation as to whether P, in fact, lacks capacity.
The analysis of s.21A in this case is crisp and clear, both clearing away a drafting confusion that has crept into many orders, and also – helpfully – reinforcing the importance of: (1) s.21A applications being determined speedily; and (2) the court requiring proper evidence of capacity before declaring itself satisfied that the capacity requirement under DOLS is met. The observation that it would be possible to resolve the doubts about capacity that had arisen by asking further questions of the individual who had conducted the capacity assessment (rather than by seeking a further view) may well be of wider application, and the thought that the capacity assessor might routinely be expected to stand behind their assessment in court may help concentrate minds in the underlying authorisation process.
The (obiter) analysis of the threshold under s.48 is also very helpful for clearing away another problem which had been encountered on the ground.
It raises, though, an interesting wrinkle as regards ‘ordinary’ cases in which the Court of Protection is deploying its conventional powers. There are very many cases where the court does not have the evidence before it to reach the conclusion whether P, in fact, lacks capacity in the material domains. The conventional route, to date, has been for interim declarations to be made under ss.15 and 48 as to capacity, and interim decisions to be made under ss.16 and 48. The approach outlined by Hayden J could be read as suggesting that, in fact:
- Section 15 should only ever be used at the point where the court is satisfied that it can determine whether or not P has capacity;
- Section 16 should only be used at the point where the court is in a position to have reached a conclusion – recorded in a s.15 declaration – that they do not; and
- In any case where the court is holding the ring whilst the evidence as to capacity is being finalised, only s.48 should be used, and that any orders (for instance as to residence, care or contact) should be made on the basis of s.48 alone.
If this is the case then this would give rise to an interesting – further – issue in relation to deprivation of liberty. Section 4A envisages that deprivation of liberty is lawful where there is a decision of the court under s.16(2)(a) MCA 2005. But a court could not make such a decision on an interim basis on the analysis above. It may therefore be in cases outside s.21A (i.e. where no DOLS authorisation is in place) that the authority to deprive P of their liberty must continue to arise under s.4B(1), i.e. that they are waiting for a decision of the Court of Protection – which means, in turn, that the person may only rely upon this authority where (in essence) the deprivation of liberty is for purposes of giving life-sustaining treatment or preventing a serious deterioration in P’s condition. It is perhaps fair to say that no-one, to date, has appreciated that there may be this additional (and perhaps not unimportant) condition in cases where the case is not only before the court in the sense of having been issued, but indeed is the subject of active consideration by the court.
It may well be the case, therefore, that there will be a need before too much longer for a judge to consider the interaction between ss.15-6 and s.48 and to give a definitive interpretation of this particular construction conundrum.
Finally, it is also of note that this is the first reported case where an ALR has appeared – although they have now been around for some time, the court’s take up of the opportunity to deploy them has to date been relatively slow. That the ALR in this case, involving an appeal, appeared to consider – and no-one appeared to doubt – that they were in a position to run the case, may perhaps serve as an encouragement to other judges to consider appointing them.
 Section 48 is not drafted in the clearest of terms, but it does contain a reference to the court being able to make an order (not just give directions); this has conventionally been understood as enabling the court to make an order under s.16, but on the basis of this judgment should be understood as enabling the court to make the order – i.e. a decision – as to where, e.g. P should live.