Key takeaways
Individuals can challenge care arrangements in courtProactive care planning helps prevent proceedings
Regularly checking in on care arrangements and listening to concerns can reduce the need for formal legal action. This process allows those deprived of liberty to question their placement and ensure their rights are protected.
Cases often arise from objections or concerns
Applications are usually made when someone disagrees with their care or when their placement may not be suitable.
Proactive care planning helps prevent proceedings
Regularly checking in on care arrangements and listening to concerns can reduce the need for formal legal action.
What is a Section 21a application?
A person (‘P’) who is deprived of their liberty under a DoLS (Deprivation of Liberty) authorisation in a care home or hospital has the right to have these arrangements reviewed by a court or tribunal. This is to ensure that their Human Rights are not breached. The mechanism for doing this is included in section 21A of the Mental Capacity Act 2005 and involves the person making an application to the Court of Protection. The application is referred to as a ‘Section 21a Application’. Usually, an application will be made where P is objecting to being deprived of their liberty, or objecting to their current care arrangements, for example if they are in a care home and want to go home.
P has access to legal aid to bring such an application. The application can also be brought by the Relevant Person’s Representative (RPR). Where P is objecting and has not made an application then the Local Authority which has authorised the DoL is expected to do so.
In future, people who are deprived of their liberty under the LPS (Liberty Protection Safeguards) in their own home or supported living, will also be able to challenge the arrangements in a similar way. Currently they cannot.
Two common types of Section 21a Applications upon which we are instructed:
Type 1
It is often the case that P is in the right placement for them which is successfully meeting their needs and there are no alternative options available that are suitable.
P may still be objecting and has the right to challenge the arrangements.
In this scenario, we support the (now) ICB to prepare and file a witness statement explaining why the current placement meets P’s needs and why it is the only available option.
These proceedings often conclude quickly, particularly where all the parties, other than P, are in agreement.
Type 2
Sometimes P may not be in the most appropriate or least restrictive placement, and they do need to go somewhere else to better meet their needs.
In these cases, it is important to keep the court and parties updated with any placement searches conducted by the ICB, and best interests analysis. These applications often involve the preparation of multiple witness statements to detail progress, which we assist the ICB in preparing.
Usually, these cases will resolve by agreement, with the court providing a final order to authorise a move, for example to P’s own home or an alternative care home.
Tips on avoiding Section 21A applications:
Consider P’s views when placing them. Do they object to the arrangements? Is there a less restrictive alternative or something they would find more acceptable?
Ensure regular reviews are conducted to assess P’s care arrangements. Does the placement continue to meet P’s needs? Is it in their best interests and is there a less restrictive option? Check if P is raising objections and if anything can be done to address these.
Consider whether all restrictions are necessary or whether any can be removed. Sometimes s21A applications are made not because P wants to move, but because they want more access to the community, visits to family or access to things like the internet. Any restrictions must be deemed necessary and proportionate and this should always be kept under review.
Checklist for dealing with Section 21A applications:
Make sure that you are aware of the funding arrangements for P in each matter, for example, is P eligible for NHS CHC or funded by s117 after-care? If it is a joint package, is there an arrangement for the Local Authority to take the lead? Often, the ICB can be made party to proceedings where it has very limited knowledge of P or does not contribute to P’s package of care. In these applications, we assist the ICB by seeking to have it discharged on the basis that it does not need to be a party to the proceedings.
Decide who is the most appropriate person in your team to act as point of contact for the application.
Collate all documentation which you have received on this matter including correspondence with other parties and the court, and any court orders. If the ICB has already been joined as a party to the proceedings, check and note dates by which you are asked to take action (including dates for filing of witness statements and hearings).
Usually, the ICB is joined to an application as it is funding the placement. In cases where P wants to move, this will mean considering whether there are any alternative options. If alternative options are available, the ICB will need to carry out a best interests analysis to decide whether P should move to one of the other options. The outcome of these assessments and analysis will be shared with the court through the provision of a witness statement.
If the application concerns community access or other restrictions, the ICB will be asked to consider whether it is prepared to commission additional support, or if it thinks that reducing the restrictions is safe and appropriate. ICBs should routinely be giving consideration to these matters whilst they have responsibility for funding a placement.
If at any stage of the process you have questions for us, we would be more than happy to assist.
