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Re UF [2013] EWHC 4289 (COP)

Judgment in Court of Protection proceedings concerning an 84 year old woman detained under an authorisation by the court so that she was no longer eligible for non-means tested legal aid.

UF was an 84 year old woman suffering from vascular dementia who had lived in her own home for some years. Following detention for assessment under the Mental Health Act, she was placed in a residential care home and made subject to a standard authorisation. She challenged her detention in an application under s. 21A Mental Capacity Act 2005.

At an initial hearing, UF's daughter AF was appointed to act as her litigation friend. The district judge then directed, following the guidance given in Re HA [2012] EWHC 1068 (COP), that UF should reside in the care home pending the outcome of her application, and that any resulting deprivation of liberty would be authorised by the court pursuant to s. 16 (2) (a) MCA 2005.

UF made an application to the Court pointing out that, since the judgment in Re HA, regulation 5(1)(g)(ii)(aa) of the Civil Legal Aid (Financial Resources and Payments for Services) Regulations 2013 had been implemented, with the effect that non-means tested legal aid was only available for a s. 21A application when a standard authorisation was in force. Therefore, if UF's detention was instead authorised by the court under s. 16 (2) MCA, she would only be eligible for legal aid if she qualified on a means basis.

UF had assets worth over £100,000 but had executed a lasting power of attorney in favour of a legal executive who indicated that he would not fund litigation. Consequently, when the standard authorisation expired in September 2013, UF was left in the care home unable to fund litigation privately and effectively disqualified from legal aid.

Mr Justice Charles accepted the joint submissions of the Legal Aid Agency and the Ministry of Justice that this regulation was not designed as a response to Re HA, but did not find their reasons for its implementation to be convincing. He acknowledged the arguments identified by the applicant as to the lawfulness of the regulation under Article 5 ECHR, but favoured a pragmatic approach.

Although the Court could not grant a fresh standard authorisation, or revive one which had expired (as in the present case), Charles J found that s.21A gave the court the power to order that a standard authorisation should continue for a period sufficient for the remainder of the proceedings. The LAA confirmed that if the local authority gave a new standard authorisation, and this was extended by the court, this would not be regarded as a contrivance for the purposes of public funding.

The local authority was therefore invited to give a standard authorisation for a short defined period, and this would be extended. In future, it would be open to the courts in the vast majority of s.21A applications to abandon the approach set out in Re HA but achieve effectively the same result by extending the relevant authorisation (or otherwise ensuring that a standard authorisation is in existence). This would not affect a party's eligibility for non-means tested legal aid.

Consideration was also given to the problems faced by family members when deciding who should act as a litigation friend for a detained relative. While the requirements of the Official Solicitor could pose difficulties where a review of detention needed to be undertaken quickly, it was stressed that a litigation friend must take a balanced and even-handed approach to the relevant issues. In AF's case this presented an impossible task, and the Official Solicitor was invited to act in her place.

Summary by Miranda Mourby, pupil barrister, Coram Chambers



No. COP12371457
[2013] EWHC 4289 (COP)

Royal Courts of Justice
Thursday, 21st November 2013




Transcribed by BEVERLEY F. NUNNERY & CO
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(As approved by the Judge)

1. The background to these proceedings is one that is not an uncommon for the Court of Protection.  The subject of the proceedings - and I should say, because one of the members of the family is present, that I shall be referring to people in an anonymised way because as and when this transcript is corrected it will be a public document - is a lady ("UF") who is now 84.  She has been diagnosed as suffering from vascular dementia of a moderate level.  She, as I understand it, lived at home alone for some years until after her release from a detention under s.2 of the Mental Health Act, she was placed in a residential care home.  My understanding is that, in the period leading up to that section, there was a care package in place for her at her home.  The evidence also indicates that she has suffered from pain which has been treated, as I understand it, with a dosage of morphine, which has been reduced over time, certainly, through 2013.  The evidence indicates as one would expect that her treatment with painkillers may have had an impact on her thinking and behaviour.

2. It is also sadly the position, although not uncommon so far as the Court of Protection is concerned, that there have been long-standing problems and disputes between the children of UF.  In short, after her release from section under s.2 of the Mental Health Act and her placement in the care home, there have been a series of assessments and a number of best interests meetings.  They have resulted in standard authorisations under the deprivation of liberty safeguards ("DOLS") provisions in the Mental Capacity Act 2005 (the "MCA") being given.  Standard authorisations are authorisations which authorise, and so render lawful, a deprivation of liberty of a person in a care home or a hospital.  The assessments leading to those standard authorisations have, as required by the MCA, included assessments founding conclusions of the assessors that:  (1) UF does not have the capacity to make relevant decisions as to where she should live, and (2) UF's best interests were promoted by her remaining at the care home.  The best interests assessors in their reasoning have had regard to the long-standing and current disputes between the children of UF. As I understand it, at present the earlier package of care at home was in part funded by the local authority and was part self-funded.  UF has executed a power of attorney, I understand, in favour of a legal executive in a firm of solicitors, who has the day-to-day management of her financial affairs on the basis that it is the view of that executive and of others that she does not have the capacity herself to deal with those affairs.

3. As is required by Schedule A1, Part 10 of the MCA, a representative was appointed for UF under the umbrella of the standard authorisation.  The position and obligations of such a representative have been helpfully set out and commented on by Mostyn J, AB v A Local Authority and The Care Manager of BCH [2011] EWHC 3151 (COP).  I recommend and have used that judgment as a helpful and convenient compilation of the relevant statutory provisions relating to such a representative and of the rules relating to the appointment of a litigation friend in proceedings in the Court of Protection.  

4. The position has now been reached that one of UF's daughters, AF, who had made her views known to but had not attended the best interests meetings, as I understand it because of difficulties of communication between her and her siblings, is of the view, having seen her mother on a regular basis, which is something she continues to do, that her mother may have capacity to reach the relevant decisions.   But, in any event, AF reports that her mother has expressed and is expressing to her in strong and, to her mind, worrying terms that she does not wish to be at the care home.  This has caused AF concern.  Her view expressed in evidence to this court is that her mother is very unhappy at the care home.  Indeed, she has said that in her view the placement is endangering her mother's life.  In her view, her mother would be much better placed back in her own home with an appropriate package of care.  An alternative, suggested by AF is that her mother could come to live with her in her part of the country.  Counsel today described that as a backstop.  I think that that is a fair description of how it is put forward.  I should also record that the indications at present on the evidence are to the effect that UF has indicated that that is not a place where she would wish to reside.

5. At the heart of the dispute, again not unfamiliar to the Court of Protection, is the choice to be made between care in a residential home and care at home with a support package which provides physical safety, and many of the arguments in favour of the support package at UF's home relate to the promotion of the emotional security and happiness of UF.  These are very human stories and issues.  They present, of course, members of the family with difficult issues and problems.  Also, but without the same emotional element, they present employees of the relevant local authority and those from whom members of the family seek advice with practical problems and with problems arising from the technicalities of the MCA and in particular the labyrinthine provisions relating to its DOLS.

6. Part of the background to this case, and why it has ended up before me, is that problems have been encountered relating to the provision of legal aid to fund UF's representation on a non-means tested basis.  The parties and the District Judge followed the approach set out in a decision of mine in Re HA [2012] EWHC 1068 (COP).  In that case, which had a number of similarities to this one, I indicated that, in my view, the relevant application to court remained an application under s.21A MCA, but the most appropriate way of managing it was for the court to take control of the proceedings and itself to authorise a continuing deprivation of liberty if that is what the court thought was the correct course to take.   Notwithstanding the considerable difficulties that can exist in identifying whether or not there is a deprivation of liberty, in this case it is common ground before me that, given the statements made by UF that she does not wish to be in the care home and the steps being taken in the care home to ensure that she remains there, this is a case in which it is, if not inevitable, extremely likely that it would be found that whilst she is in the care home there would be a deprivation of her liberty.

7. As in a number of cases, on the evidence presently before the court, there is no immediately available alternative placement for UF.  This is because issues have yet to be formulated with sufficient particularity and supported by evidence, again an echo of Re HA, concerning the viable alternatives.  Standing back for a moment and asking what the issues in this litigation are likely to be if it is found that UF does not have the capacity to make the decision for herself as to where her home should be and the support package she should have in that home, it is plain that the factors that the court will have to take into account in determining best interests will include the availability and detail of the available options.   The primary options being (1) remaining in the care home under a similar regime to that which presently exists, and (2) a move home with an extensive support package at home.  The consideration of that support package would need to be informed by its availability both physically and financially.  Thought will have to be given to the attitude that UF would be likely to have towards the relevant carers.  All that engages issues as to who would be providing it, how much it would cost and who would be paying for it.

8. That is the background.  The difficulties arise from the divergence in view between AF, the daughter who opposes the otherwise unanimous view of UF's children that it is in her best interests to remain in the care home.  Naturally, the fact that AF is in the minority does not mean that she is not correct. 

9. Section 21A is plainly in the statute as part of the regime put in place to fill what is known as "the Bournewood gap".  The case law thus far on how s.21A operates is fairly scant.  My understanding is that there is a case which has very recently been heard by the Court of Appeal which might throw some light on this.  For some time, it has seemed to me that attention has not yet been directed to the problems that might exist if a court considering the evidence that was before it, necessarily at a later time to the times upon which the relevant standard authorisations were given, reaches different conclusions to the relevant assessors and those responsible for granting the standard authorisation.

10. Such points may well not be academic because issues could arise whether a deprivation of liberty was unlawful through periods of time during which DOLS authorisations based on conclusions that are different to those reached by the Court were in place.  In that context, the relevant public authorities may face claims for damages.  To my mind, there must be an argument that, in testing the legality from time to time of standard authorisations, an administrative law test is the appropriate one.  However, equally, to my mind, and this is supported by the approach taken thus far in the Court of Protection, in the exercise of its powers under 21A the Court of Protection is not carrying out any sort of appeal or review jurisdiction.  Rather, it is assessing the relevant qualifying requirements itself and reaching its own view on the evidence presented to it.  It is almost inevitable that when doing that the Court will have to pay close attention to what will, on the evidence before it, best promote the best interests of the relevant person in the immediate, medium and long term and so carry out its own best interests assessment.  That is an inevitability in this case should it proceed.  Also, as I have explained, if this case proceeds there is a high likelihood or an inevitability that if it is thought that the least restrictive way to best promote the best interests of UF is that she should be in a care home, so long as she protests at being there, she would be being deprived of her liberty and therefore that would need to be authorised.

11. So, as I read it, s.21A gives the Court of Protection the task of itself considering and making its own mind up on whether a standard authorisation should continue or should stop, or whether certain variations should be made to conditions relating to it.  It therefore, has to consider amongst other things whether or not the relevant person has capacity and also best interests.

12. Another point that arises is who can make an application under s.21A?  On its face, that is not restricted.  So a family member could, of his or her own motion and for himself or herself, make the relevant application.  The application can be made on behalf of the person detained.  Also, the application could be made by the representative appointed under Part 10.  That is made crystal clear by the provisions that P (i.e. the person detained) and that representative do not need permission to bring the proceedings.

13. What happens on the ground, when somebody in the position of AF (i.e. a child or family member who thinks that the decisions of others on and relating to the placement of a person are flawed) wishes to challenge that decision and so wants an application under s.21A to be made?  What are the persons who he or she consults then meant to do?  Part of the advice could be, "Well, make the application yourself".  Alternatively, and sensibly, there is force in seeing whether the application should be made by or on behalf of P.  That would often involve, it seems to me, making enquiry of the representative on his or her position.  So far as I am aware no such enquiry was made here but, as the representative agreed with the best interests decision on placement that was made, a clear inference is that he or she would not be inclined to initiate or to take any steps to challenge that decision or the ensuing deprivation of liberty.  That leaves, therefore, as realistic possibilities (a) a family member bringing the application themselves, and (b) the application being made by or on behalf of P.  If P does not have litigation capacity, P, pursuant to the Rule 141 of the Court of Protection Rules 2007 ("the Rules") must have a litigation friend.

14. The application was made as an application by UF.  The experienced solicitor who was instructed by the daughter AF in respect of it did not form the view, and probably at that time was not in a position to form a view one way or the other, that UF had litigation capacity.  The application was presented in UF's name, and in a supporting statement AF describes herself as making her first statement as a litigation friend of her mother, UF.  For present purposes, I shall assume that the relevant certificate was lodged.  It is not in the papers before me, but if it was not lodged that was an oversight.  That approach presents the court with the issue whether or not the self-designated litigation friend should continue to act as the litigation friend.  I propose to look at this issue in this case disregarding the problems that arose relating to the continuation of non-means tested legal aid.

15. When the matter came before the District Judge, for reasons which he explained as being pragmatic, and one can understand why he so described them and took the course that he did, he appointed AF to be the litigation friend on an interim basis, his view being that the sooner a report on capacity was obtained the better.  With hindsight and the assistance of the submissions made today, in particular by Mr. O'Brien on behalf of UF, that course, it seems to me, had some difficulties.  This is because I accept his submission that the determination of the issue of capacity to make the decision on where UF should live cannot be made without appropriate detail being provided of the relevant choices which the relevant assessor has to take into account in determining whether or not UF can give appropriate weight to the factors that are relevant to the decision on her placement.  But, in any event, that direction floundered by reference to funding problems to which I shall return.

16. The pragmatism which underlay the District Judge's procedural course was in large measure based upon the stance taken by the Official Solicitor towards an invitation to him to act as litigation friend.  By a letter of 4th November, the Official Solicitor wrote saying that, in order to consider whether the Official Solicitor can accept an invitation by the court to act as a litigation friend, he requires:

(1) an interim finding or evidence that the person for whom the Official Solicitor is being invited to act falls within the definition of "P" in Rule 6 of the Rules;

(2) confirmation that there is security for the costs of legal representation; and

(3) confirmation that the case is a last resort case (i.e. that there is nobody else suitable and willing to act as litigation friend).

It is also well known that the Official Solicitor's normal response is to say that he requires eight weeks or approximately eight weeks to enable him to consider his position.  As I understand it, that stance and response is in large measure driven by the resources of manpower and funding available to the Official Solicitor. In the context of an application under s.21A, if the Official Solicitor is to be the litigation friend, that approach (particularly if it involves the gathering of evidence on capacity to make the relevant decision and funding and that timetable) is in most cases likely to be inappropriate, hence the pragmatism adopted by the District Judge.

17. I should pause to say that on my reading of Rule 6 the point as to whether or not there is prima facie evidence of a lack of capacity to make the relevant decision, which is normally an issue on which the Official Solicitor seeks an interim finding before agreeing to act, is not relevant where one is dealing with an application under s.21A because, as I read Rule 6, P includes a relevant person as defined in paragraph 7 of Schedule A1, and thus the person who is the subject of the standard authorisation.  That authorisation will be based on an assessment that the person lacks the capacity to make the relevant decisions on placement and that assessment may be challenged in the application made under s. 21A.  Whether or not it is challenged either the underlying assessment is prima facie evidence of a lack of capacity or the issue of capacity is irrelevant to the application of the definition of P.  Litigation capacity is a separate issue not mentioned in Rule 6.

18. But I record at this stage that, in any event, there is sufficient evidence before me, applying the approach in Re F [2009] EWHC B30 (Fam), in the capacity assessments and the supporting information from doctors to found the view that the Court of Protection can make an interim declaration that it appears that UF lacks the relevant decision making and litigation capacity.  To that, I also add the following two points:  first, it seems to be common ground that the attorney has been proceeding on an uncontested basis that she lacks capacity to manage her financial affairs; second, the experienced solicitor acting for UF is not, in my view, understandably, and on what I have seen correctly, in a position to say that he feels that UF has the capacity to give him instructions directly.  I mention the latter because the subject matter of the litigation has enormous overlap with the subject matter of the issues that UF would have to take into account in deciding where she should live.  So, subject to the funding point and whether or not, as the Official Solicitor describes it, he would be a last resort appointment, there seems to be no impediment to the Official Solicitor carrying out one of his functions by acting as UF's litigation friend in these proceedings.

19. Is this a last resort case in the sense of whether or not there is somebody else suitable and willing to act as a litigation friend?  As I have mentioned, so far as I am aware, the possibility of the representative who was appointed under the MCA acting as UF's litigation friend was not investigated in any detail.  Generally, it seems to me that often that possibility should be investigated in line with what Mostyn J. said in the AB case.  But, as it seems clear that the representative was of the view reached at the best interests meetings, it is very understandable here why AF was advised to bring the application as UF's litigation friend as she was and is the person who disagrees with the decisions made at the best interests meetings.  As I have said, the District Judge continued this representation on an interim basis for a limited purpose.  As I understand it, this was opposed by the local authority.

20. It is submitted on behalf of UF, on the basis of instructions from AF as her litigation friend, that AF's appointment should continue throughout this litigation.  It is said that the governing rule is essentially Rule 140 which  provides in subparagraph (1) that:

"A person may act as a litigation friend on behalf of a person mentioned in paragraph (2) if he –

(a) can fairly and competently conduct proceedings on behalf of that person; and

(b) has no interests adverse to those of that person."

For present purposes, I accept completely the genuineness of the position adopted by AF.  I also accept for present purposes that should the matter be litigated through to the end her view may be found to be one with which the court agrees.  It seems to me that, I also have to proceed on the basis that the same applies to the views of her siblings who have not as yet taken an active part in these proceedings.  They have however taken, to a greater and lesser extent, an active part in the best interests meetings.

21. From that starting point, it is submitted essentially on AF's behalf at this stage that she has no interests adverse to those of her mother and that she can fairly and competently conduct proceedings on behalf of her mother.  Looked at in isolation, I can see that there may be some force in the argument put that there is no conflict between her and her mother in the sense that AF genuinely believes that what she is asserting is in her mother's best interests.  But it seems to me that Rule 140 must be read and applied in the context of the overriding objective and having regard to the circumstances of each case.  The overriding objective, is set out in Rule 3 as follows:

"(1)  These Rules have the overriding objective of enabling the court to deal with cases justly and having regard to the principles contained in the Act.

(2)  ---------------

(3) Dealing with a case justly includes, so far as is practicable –

(a)  ensuring that it is dealt with expeditiously and fairly;
(b) ensuring that P's interests and position are properly considered;
(c)  dealing with the case in ways which are proportionate to the nature importance and complexity if the issues;
(d)  ensuring that the parties are on an equal footing;
(e)  saving expense; and
(f)  allotting to it an appropriate share of the court's resources, while taking account of the need to allot resources to other cases.

22. With an eye at least in part to the funding issues Mr. O'Brien, submitted that, in truth, these proceedings are proceedings between AF and the local authority, so there would be no inequality of arms if she was fully represented, and that she has no interests adverse to her mother and can fairly and competently conduct the proceedings.  I do not agree that that is a fair classification of these proceedings because AF's siblings are involved and the local authority is not their agent or representative.  In short there is a family dispute as well as a dispute between one member of the family and the local authority.

23. In general terms Mr O'Brien asserted that if a member of the family cannot act as a litigation friend that severely restricts the number of available people who might be able to act as a litigation friend and thereby cause problems in litigation of this type.  I agree that members of a family, even if there is a family dispute concerning P's best interests could, albeit I think rarely, appropriately act as P's litigation friend in proceedings relating to that dispute.  However, it seems to me that he or she would need to demonstrate that he or she can, as P's litigation friend, take a balanced and even-handed approach to the relevant issues.  That is a difficult task for a member of the family who is emotionally involved in the issues that are disputed within the family and it seems to me an impossible task for AF to carry out in this case.  One only has to look at her statements to see that she is clearly wedded to a particular answer.  You do not see within her statements a balanced approach or anything approaching it, such as:  "This is the problem.  These are the relevant factors for and against".  That is not a criticism.  Rather it seems to me that it is a product of the result of there being long-standing family disputes and the existing clear divisions of opinion within the sibling group as to what will best promote UF's best interests.

24. In the context of the disputed issue relating to where it is best for UF to live and thus how she should be supported there, to my mind, the history of dispute within the family and the issues relating to the funding of the necessary support mean that it is simply not possible for AF to conduct the proceedings fairly in the way in which that concept should be interpreted in Rule 140 or in a way, in which AF's interests are not or cannot be said to be adverse to those of UF.  Essentially this is because AF has an argument which she definitely wishes to run in advancing the best interests of her mother and this, coupled with the family history, means that AF cannot realistically consider the alternatives dispassionately.  When you add in the need to construe the words of Rule 140 by reference to the overriding objective, it seems to me clear that this is a case in which AF should not continue to be the litigation friend of UF.

25. So this can be categorised as a last resort case which triggers the need for the Official Solicitor to act as such in performance of one of the functions of his office.  As I have already indicated, there is evidence in the assessments which is internally compelling that UF does not have capacity to make the relevant decisions and this conclusion is supported by views taken thus far as to her capacity to conduct her financial affairs and to litigate.  Further, as it seems to me that this is a case which cries out for somebody with the independence of the Official Solicitor to address both UF's capacity to litigate and to make the relevant decisions, the court should not take the course set by the District Judge of embarking on getting evidence on what is in effect a preliminary enquiry as to UF's capacity to make decisions on where she should live and how she should be supported there until the Official Solicitor, or some other independent person, has addressed this task in an appropriate timescale, or in light of this judgment has refused to do so.

26. Understandably in all the circumstances of this case, argument on whether the representative appointed under the MCA, rather than the Official Solicitor should in the performance of his or her role act as UF's litigation friend in this s. 21A application were not advanced before me.  Such argument would return one to Mostyn J's helpful discussion and analysis in the AB case to which I have referred earlier and in particular to paragraphs 38 to 46 of his judgment.  Any such argument is for another day and would probably require wider representation.
27. Naturally, I am not ruling out the need for relevant evidence at a later stage, but the "capacity issues" and the need to provide sufficiently detailed evidence on the placement and support options in the context of them (as well as on the best interests issue) demonstrate the enormous difficulties presented to AF in respect of the conduct of these proceedings on behalf of her mother rather than on her own behalf, albeit that her wish is to promote what she believes is a result that is in her mother's best interests.  Indeed, it seems to me unfair to try to impose that task and its burdens upon her.  She has a view which she is perfectly entitled to have and to advance in the dispute with her family and the local authority but, leaving the funding issue on one side, in my view it is not appropriate for her to do this as her mother's litigation friend.

28. That leaves the funding problem which has arisen.  In Re HA I concluded, as I have already indicated this afternoon, that, to my mind, when an application under s.21A is made the natural course is for the court to take control.  Part of my thinking on that takes me back to the point I raised earlier concerning the difficulties that arise and the potential for damages claims being made against public authorities if they continue standard authorisations and, at the end of the day, the court reaches a different view on, for example, the best interests assessment. 

29. The funding problem arises because after Re HA the relevant regulations have been changed and from 1st April 2013 Regulation 5(1)(g) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 provides (with my emphasis) that:

"5(1) The following forms or civil legal services may be provided without a determination in respect of an individual's financial resources -----

(g) legal representation in relation to the matter described in paragraph 5(1)(c) (mental capacity) of Part 1 of Schedule 1to the Act to the extent that -

(i) the legal representation is in proceedings in the Court of Protection under section 21A of the Mental Capacity Act 2005; and

(ii) the individual to whom legal representation may be provided is –

(aa) the individual in respect of whom an authorisation is in force under paragraph 2 of Schedule A1 to the Mental Capacity Act 2005; or

(bb) a representative of that individual appointed as such in accordance with Part 10 of that Schedule; ---- "

30. In short, the interpretation placed upon the new regulations by the legal aid authorities, the LAA, is that for there to be non-means tested legal aid a standard authorisation has to be in existence and to continue in existence.  At the hearing before me arguments were identified (a) as to whether that is the correct construction of the Regulation, and (b) that engage Article 5 points on the lawfulness of the Regulation itself.  Neither of those arguments need detain me for present purposes and I am proceeding, as have the parties, it seems to me, sensibly and pragmatically on the assumption that the stance taken by the LAA and the Ministry of Justice on the effect of the relevant new regulations is correct.

31. The District Judge joined the LAA, through its Director of Casework.  They applied to be discharged when this matter first came before me.  I refused to do that but acceded to their invitation to add the Ministry of Justice, as the Department responsible for the policy underlying the change in the Regulations.  Helpfully, they have provided a witness statement and instructed counsel, who has set out their position.  Both in evidence and in submission they have assured me that the thinking behind the change in the Regulations was not directed at my decision in Re HA.  I accept that, but I have not found their explanations of the reasoning for the change easy to follow or convincing.  However, the important point is, and this is why it seems to me important that they and the LAA should be joined, is that it has been made clear by them that if the Court was to exercise powers under s.21A, or indeed any other powers, to bring about the result that a standard authorisation remained in place no point would be taken that that was a contrivance or would be a ground for not granting legal aid on a non-means tested basis. 

32. On the issue of contrivance I should record that the general position helpfully adopted by the Ministry of Justice and the LAA was that if applying the approach in Re HA the Court would have authorised a continuing deprivation of liberty of P (here UF) or such deprivation of liberty as there was arising from the implementation of the relevant placement plan, whilst the Court considers the issues under s.21A, the achievement of that result by the Court taking a different route that provides that a standard authorisation is in force would not be regarded as a contrivance.

33. That stance means that in all or the vast majority of applications under s. 21A that have and will come before the court it is open to the court, without being accused of being a party to any contrivance by the relevant funding authorities, to:

a. abandon what I still think is the more sensible course set out in Re HA of taking control of the matter itself and granting interim relief and authorisation, and instead

b. to reach effectively the same result, if it has the power to do so, under s.21A, by continuing in force the relevant authorisation, or otherwise bringing about the result that a standard authorisation is in existence. 

34. It seems to me that the combination of s. 21A (2)(b) and (3)(a) and (b), s. 47 and s. 48 and paragraph 61(2) of Schedule A1 of the MCA empowers the Court of Protection to vary an existing standard authorisation by extending (or shortening) it and that if and when it exercises that power it would normally be sensible for the court to give consideration to whether it should then exercise its powers under ss. (6) and (7) or give directions concerning its future exercise of those powers. 

35. In my view, if the court so extends a standard authorisation it, unlike the supervisory body (see paragraph 51(2) of Schedule A1), is not limited to the period stated in the best interests assessment upon which it was based if that period is less than the one year referred to in paragraph 42(2)(b) of Schedule A1.  This is because the Court is exercising its discretion and powers, and so is in effect carrying out its own (interim) best interests assessment.

36. Normally any variation extending or directing the extension of a standard authorisation whilst the s. 21A application is determined will not extend beyond that possible maximum of one year for that standard authorisation (as yet there have been no regulations setting a different period).  If it did, in my view the Court should consider whether it has the power to do this or whether it should adopt a similar course to that set out below.

37. Here there is an additional problem.  It is that as the parties and the District Judge followed the guidance I gave in Re HA there is now no standard authorisation in force and in my view correctly it was not argued that the Court had power under s. 21A to grant a new one.

38. The absence of a standard authorisation has triggered the result that the LAA assert that the non-means tested legal aid for P is no longer available.  Recently, this has become a well-known problem for those who have regular contact with proceedings in the Court of Protection.  I knew of it before this case came before me.  Its existence in a number of cases was confirmed by the solicitor acting for UF and AF who has considerable experience in this field through his practice and his work as the Chair of the Mental Health Lawyers Association. 

39. It would be surprising if this problem was not known to the Official Solicitor.  When the matter last came before me I considered whether or not it would be appropriate to invite the Official Solicitor, as well as the relevant Government Department, to come to court to make submissions on the relevant issues, but, mindful of the resource problems of the Official Solicitor.  I did not do that and instead I took up the offer made by the solicitors and counsel acting for UF to address the issues on a pro bono basis.  I, and no doubt others faced with the same problem, are grateful to them for doing this because the stance taken by the LAA has in a number of cases undoubtedly created problems that were not anticipated when I decided Re HA.

40. In my view happily, because of (a) the steps and arguments that they and the local authority have taken and advanced, and (b) the stance taken by the Ministry of Justice and the LAA that they would not regard the route described below as a contrivance, the result that an application of the approach set out in Re HA will result in the removal of non-means tested legal aid for P, because it brings to an end the standard authorisation that is challenged can be avoided without the Court and the parties having to pursue the arguments, referred to earlier, that the stance of the LAA based on the Regulations is wrong

41. In AM v (1) South London & Maudsley NHS Foundation Trust and (2) the Secretary of State for Health [2013] UKUT 0365 (AAC), at paragraph 59, I recorded my agreement with the submission in that case of the Secretary of State that the DOLS regime applies when there may be a deprivation of liberty in the sense that it applies when it appears that judged objectively there is a risk that cannot sensibly be ignored that the relevant circumstances amount to a deprivation of liberty. I had expressed the same view, in A Local Authority v P and PB [2011] EWHC 2675 (CoP) at paragraph 64(vi).  There it is based on different, but in my view supportive, reasoning to that set out in the AM case which is based on the duty imposed by paragraphs 24 and 76 of Schedule A1.

42. As I have indicated, I agree that the elasticity of the language of s. 21A does not extend to the revival of an authorisation which has ended and been substituted by the continuation of an authorisation under court order, or to the making by the Court or the supervisory body on the direction of the court of a new standard authorisation.  However, it seems to me that there is no need to do that, and in this case, with the cooperation of the local authority, what I propose to do is to approve the following course, which will be set out with greater particularity in an order which I will approve, namely that:

a. The authorisation given by the District Judge will continue to an identified date. 

b. If, having reassessed the position, they are so minded to do so the local authority as the supervisory body will give a standard authorisation from that date (see paragraph 52 of Schedule A1). 

c. I invite them to do that for a short defined period, say 14 days or a similar period ending on a date that the courts are open.

d.  Without further application or hearing, I will exercise my powers under s.21A to extend it for six months or to such other date as the court may from time to time direct.  That will provide ample time to resolve the application.

e. At the same time, I will exercise my power to exclude the local authority from any liability arising from the grant of that standard authorisation.

43. I have heard argument that the Court could and should simply leave matters to a local authority to continue authorisation of a deprivation of liberty during the currency of s.21A proceedings.  In this case, and others, this would mean that the relevant public authorities should take the responsibility for and the risks arising in respect of a challenged placement that involves or may involve a deprivation of liberty.  That argument is founded on the duties imposed upon the relevant authorities both by Schedule A1 and 1A and their more general duties.  I do not rule out that course being taken by the Court. 

44. But in my view, having regard to the obligations and duties of the Court under s.21A and more generally under the MCA and its DOLS, it will normally be appropriate for the Court to satisfy itself as to and to take control of the interim position by exercising its powers under s. 21A and/or other provisions of the MCA.  Not only does that accord with the Court's role, if it is not done it would be likely to impose difficulties for the individuals and bodies involved in the proceedings and unnecessary responsibilities on assessors and decision makers that could render constructive consideration of P's best interests more difficult.

45. So far as directions are concerned, discussion with counsel today identified the need for further directions essentially directed to identifying the detail of the options available to the best interests decision maker.  In that context, both the local authority and the best interests assessor have to have, and have had to have, a view as to what the alternatives are.  The local authority have agreed that they will put in evidence identifying the position relating to support for UF at her old home which will engage issues relating to funding and indeed any public / administrative law point that the local authority would wish to take in that context.  In turn, AF will set out her position which will include her stance on UF's capacity and on the alternative care options. 

46. It seems to me that AF's siblings should also be joined and the order should provide that, if so advised or if they wish, they can put in evidence on those issues as well.  The order will also provide that the property and affairs attorney is to be notified of these proceedings and the local authority have agreed to write to the attorney explaining the position.  It will be very helpful if the position on self funding of a package of care at home was known.  It seems to me that the availability and funding of such a package is something that the local authority will have to consider and raise with the attorney, but I am grateful to them for taking on that task.  If and to the extent that AF wishes to advance a placement with her, it seems to me that the ball, if I can put in this way, is in her court to provide the appropriate particulars for that and others can react to that evidence.

47. I would also like it to be indicated to the Official Solicitor that it seems to me that the conditions set out in the letter from him that I referred to dated 4th November are satisfied in this case.  Also, given the time lag, caused in large part by the problems relating to funding, I would invite the Official Solicitor once the funding is in place to give this case priority within his office so that on a date in early 2014 matters can be progressed, if need be, with some degree of urgency.  It seems to me appropriate that for that hearing I should keep this case.  Whether I keep it after that will depend on what the issues are at that stage.