Court of Protection: What’s the difference between sections 21A and 48 of the Mental Capacity Act (apart from another 27 sections)?!

Entanglement no more. We have further clarity on both section 48 and the operation of section 21A procedure.

In a decision last month, the CoP provides a welcome steer on these various sections within the MCA. This will be of interest to those working in the field of health and social care.

In DP v London Borough of Hillingdon the CoP allowed an appeal against section 48 declarations and a failure to consider whether to terminate a standard authorisation under section 21A.

The facts in brief

DP, is 72 years of age and suffers from organic personality disorder and associated catatonic disorder secondary to a stroke. DP has been a resident of NN Care Home since 2004. He requires support with activities of daily living and takes antipsychotic medication and mood stabilisers.

The London Borough of Hillingdon granted a standard authorisation in September 2019 which was due to expire in September 2020. DP challenged the authorisation as he wished to live near his friend in West Drayton. A condition of the authorisation was that the care home should continue to liaise with care management to explore ways of supporting DP to access community and facilitate contact with his friend.

A section 21A application was made challenging DP’s deprivation of liberty on the grounds that the mental capacity assessment was flawed. The court made interim declarations under section 48 to the effect that DP lacked capacity both to conduct proceedings and to make decisions in relation to his care and residence and, in addition, directed a section 49 report for further evidence on capacity given the quality of evidence.

DP successfully appealed against the interim declarations on the grounds that the court had wrongly applied section 48  which it said does not confer a power to make declarations but allows for the making of an order or giving of directions and instead should have applied section 21A which covers varying or terminating the standard authorisation in force.

Section 48: declarations

The CoP remind us that its 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. The procedure prescribed by the MCA requires the court to determine whether the Schedule A1 qualifying requirements, which include the mental capacity requirement, continue to be met.  

In DP’s case, the first instance judge was uncertain as to his capacity and as such, was required to investigate it further and to do so “speedily” adopting the wording used in Article 5(4) of the European Court of Human Rights. According to the CoP, it was open to the first instance judge to permit questions to be put to the Dr Longe who conducted the mental health and mental capacity assessments and/or if necessary to arrange for him to give evidence or to revisit his assessment: it did not require the instruction of a further expert.

The court were keen to emphasis that an application made under section 21A does not permit the making of an interim declaration pursuant to Section 48. Section 48 itself does not permit the making of interim declarations, notwithstanding that this is almost ‘universally the practice’ observes the CoP. Section 48 provides for the making of an order or for the giving of directions. It does not provide for the making of a declaration as was the case here.

Section 48: the threshold for engaging it

The CoP share nine observations on the nature and extent of the evidence required to support an order under section 48 given its importance to practitioners.

1. "The words of the Statute in Section 48 require no gloss;
2. The question for the Court remains throughout: is there reason to believe P lacks capacity?;
3. That question stimulates an evidential enquiry in which the entire canvas of the available evidence requires to be scrutinised;
4. Section 48 is a permissive provision in the context of an emergency jurisdiction which can only result in an order being made where it is identifiably in P's best interests;
5. The presumption of capacity applies with equal force when considering an interim order pursuant to Section 48 as in a declaration pursuant to Section 15;
6. 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;
7. The court does not become responsible for authorising P's Deprivation of Liberty upon issuing of a Section 21A application. The court's function is to review the authorisation which is in force;
8. The objective of Section 48 is neither restrictive, in the sense that it requires a high level of proof, nor facilitative, in the sense that it is to be regarded as a perfunctory gateway to a protective regime; and
9. There is a balancing exercise in which the Court is required to confront the tension between supporting autonomous adult decision making and to avoid imperilling the safety and well-being of those persons whom the Act and the judges are charged with protecting."

Comment

The CoP’s decision neatly summarises a number of key points for practitioners on the CoP’s threshold for making section 48 orders where there is concern that P lacks capacity. It also revisits the difference between section 48 interim orders and the CoP’s function in relation in section 21A applications where its function is to ‘determine’ questions as to whether the qualifying requirements are met and to consider varying or terminating the authorisation in light of its determination of the questions (para 31 of the judgment sets these out in full).

Do get in touch if you would like to discuss any of the issues raised – we have a friendly and expert Court of Protection team.