Landmark Dols case adds to growing shortage of Relevant Persons Representatives
The shortage of Relevant Persons Representatives (RPRs) has been highlighted by the case of an 88-year old woman (AJ) with dementia who was moved to a care home on a long-term basis after her family placed her in respite care.
Mr C, the husband of AJ’s niece, who had been appointed RPR by the council, made the decision to move her to a care home on a long term basis.
An Independent Mental Capacity Advocate (IMCA) was instructed to support Mr C. Yet despite AJ’s known opposition to the care home placement, no legal challenge was made to the Deprivation of Liberty Safeguards (Dols) decision until more than six months after she was admitted into residential care.
Litigation friend
When the IMCA finally spoke to Mr C he realised that he was not going to initiate proceedings to challenge the Dols authorisation. At that point the IMCA agreed to act as AJ’s litigation friend and instruct solicitors to make an application to the Court of Protection on her behalf.
Mr Justice Baker found that the best interests assessor (BIA) should not have recommended Mr C as AJ’s RPR because it was clear that Mr C supported her being placed in the care home long term. As a result, his own views conflicted with supporting AJ in any challenge. The court also found that the local authority should have scrutinised the BIA’s decision, identified the conflict, and referred the matter back to the BIA.
Struggling
The Court of Protection ruling has left councils struggling to find family members to support people lacking capacity to challenge decisions made about their care under the Dols.
The impact of the ruling is forcing authorities to turn to paid advocacy professionals to take on the role of RPRs for people subject to the Dols. However, advocacy services are themselves under severe pressure.
The situation has added further pressure to a Dols system already under significant strain from the tenfold increase in cases triggered by the 2014 Supreme Court ruling in the ‘Cheshire West’ case.
Everyone who is deprived of their liberty in a care home or hospital under the Dols is entitled to an RPR. The RPR must represent and support the person in matters connected to the Dols authorisation. This includes making a legal challenge to the Dols authorisation if the person wishes to.
Other than in cases where a person with the capacity to select their RPR chooses to do so, or an attorney or deputy with authority to select an RPR does so on the person’s behalf, best interests assessors (BIAs) must recommend a family member, friend or carer that they feel can fulfil the role. The local authority then decides whether to appoint them. Where a BIA cannot find a suitable family member, friend or carer, the local authority may appoint a paid representative, often an advocate.
It has been common for a family member or friend of the person to be selected as their RPR. However, the court’s judgment in the AJ case has triggered concerns over potential conflict of interests in loved ones taking on the role.
