"20.8 Matters to be taken into account when considering an application for permission
(1) Permission to appeal shall be granted only where –
….
20.13 Power of appeal judge on appeal
(1) In relation to an appeal, an appeal judge has all the powers of the first instance judge whose decision is being appealed.
(2) In particular, the appeal judge has the power to –
(a) affirm, set aside or vary any order made by the first instance judge;
(b) refer any claim or issue to that judge for determination;
(c) order a new hearing;
(d) make a costs order.
(3) The appeal judge's powers may be exercised in relation to the whole or part of an order made by the first instance judge.
20.14 Determination of appeals
(1) An appeal shall be limited to a review of the decision of the first instance judge unless –
(2) Unless the appeal judge orders otherwise, the appeal judge shall not receive –
(a) oral evidence; or
(b) evidence that was not before the first instance judge.
(3) The appeal judge shall allow an appeal where the decision of the first instance judge was –
(a) wrong; or
(4) The appeal judge may draw any inference of fact that the appeal judge considers justified on the evidence.
(5) At the hearing of the appeal, a party may not rely on a matter not contained in the appellant's or respondent's notice unless the appeal judge gives permission.
H. The submissions of the parties
The Appellant : YC's representatives contend that Form 5 provides the assurance, on behalf of the state, that the issues engaged in determination of a detained person's Article 5 Convention rights have been properly considered and determined. Fundamentally, if a reader of Form 5 is forced into making assumptions and guesses about who is being referred to in relevant paperwork, the Form 5 has not fulfilled its purpose.
At the hearing on 2 nd November the judge asked YC's counsel to indicate whether any of the sentences including the name Ms Hull did in fact not relate to YC. Ms. Nizami could not. As I understand it, the argument on behalf of YC is not that the errors in question definitely do not refer to YC; but rather, that it can't be said with confidence that they definitely do refer to her. It is not clear why the reference to 'Ms Hull' is obviously an error, as opposed to the references to YC being the error. The reader of Form 5 is forced to speculate.
YC's representatives refer to the Cambridge Dictionary definition of "typo" as a "small mistake in a text made when it was typed or printed." They concede that, where a supervisory body wrote "his" instead of "her" in Form 5 (which does indeed occur once in this matter, at line 42), such could be considered a typographical error. The actual errors in this matter, however, cannot be so characterised. The location, nature and sheer number of the errors calls into question the level of scrutiny and suggests that there has been "gross and obvious irregularity."
Ms. Nizami argues that the requirements of the DOLS regime must be complied with particularly strictly given that the process allows public bodies to deprive individuals of their liberty. The range of checks and balances built into the system is crucial, and relaxation to excuse errors of the instant type is simply not justified. Parliament cannot have intended that supervisory bodies should be able to make multiple errors in the very document intended to evidence scrutiny, and for it not to call into question the level of scrutiny carried out. It is not open to a supervisory body to "correct" deficiencies as it purported to. The first instance judge was wrong to conclude that there was no flaw in the substance of the consideration, and that the subsequent correction was "fairly cosmetic."
In oral submissions, I asked Ms. Nizami about the effect of Andrew Seymour's statement. She accepted that Mr. Seymour was not cross-examined, and her recollection was that he was not at the 2 nd November hearing. However she maintained that the Appellant "at no stage accepted his evidence." She considers that the consent order of 13 th August, her position statement for the hearing on 2 nd November 2020, and her skeleton argument for the appeal hearing, make this clear. She said that she had only just become aware, checking the transcript, that Mr. Seymour was in fact at the 2 nd November (remote) hearing. In any event, "intention" alone is not sufficient – it is important that the document evidences the process actually undertaken.
I also asked if there were any concerns about the assessments underlying the standard authorisation. Ms.Nizami confirmed acceptance on behalf of the Appellant that all the required assessments were properly completed, and that it is not part of her case that there was any substantive flaw in them.
The Respondent : Westminster's position is that, all other parts of the standard authorisation having been correctly completed, the errors of referring to 'Ms Hull' rather than using YC's name are not significant. At most they raised a prima facie question about the validity of the authorisation. Mr Seymour has confirmed in his statement that it was his intention throughout that the Form 5 would relate to YC, and none of the details refer to any other person. That evidence was not challenged by the Appellant by cross-examination or otherwise, was accepted by the court, and is therefore determinative of any question about the authoriser's intention. The errors are of form, not substance; they do not demonstrate any lack of scrutiny; and they do not affect the lawfulness of the detention. They were legitimately corrected in accordance with what was always the intention.
In his written skeleton argument, Mr. Paget suggested that the correction of the Form 5 was in compliance with paragraph 102 of Schedule A1 ie by way of review. Rightly in my view, he did not pursue that argument with any vigour in oral submissions. Rather, he urged a realistic approach to procedures: "errors will be made and errors will be missed." It submits that the supervising body's protocols, and the regulatory oversight of the Care Quality Commission are sufficient to ensure a supervisory body's substantive compliance with its duties under Schedule A1. Any additional requirement, such as every authorisation being checked by another employee, would be disproportionate and in any event not itself fail-safe.
The Respondent contends that the position taken by YC's representatives is not properly explained: accepting as they do that de minimis errors do not invalidate a standard authorisation, why does repetition of an error make it a matter of substance? And how was the judge's acceptance of the evidence an error of law? "Detailing, categorising and itemising" the errors in Form 5 does not "clearly demonstrate" a lack of scrutiny, and the judge made no error in rejecting argument to that effect.
In response to questions from me, Mr. Paget's submission was that section 21A(2) of the Act is wide enough to provide a jurisdiction in the Court to decide "where is the joke?" which would invalidate a standard authorisation but, where the Appellant accepts that all the assessments were satisfactorily completed, a challenge under s21A(2)(a) should be dismissed. An application to the Administrative Court in respect of paperwork errors would have no traction without an underlying error of law in the decision-making process, and would probably fail the "highly likely" test of section 31(2)(A) of the Senior Courts Act 1981, even if such an application was possible from the point of view of costs. In effect, in the absence of any applicable slip rule, there is no remedy to correct an error of the type under consideration. He saw no reason why the role of Relevant Person's Representative could not encompass some sort of checking function.
I. Discussion
The Appellant's case rests on the assumption that the Court of Protection has jurisdiction to make a declaration as to the validity of a standard authorisation beyond the scope of the questions which it may determine as identified at section 21A. During the appeal hearing, I questioned that assumption. Although the 'best interests' requirement is in issue, that is not the subject of this appeal. The first instance judge was, and I am, asked to determine the validity of a public body's decision-making process. The Court of Protection does not have a general public law jurisdiction (ie where it is said that a local authority has made a decision unlawfully, judicial review proceedings are required.)
In her post-hearing submissions, Ms. Nizami has referred me to YA(F) v. A Local Authority, YA(M), A NHA Trust, A Primary Care Trust [2010] EWHC 2770 (Fam) , a decision of the then Vice-President, Charles J. The case concerned whether or not the Court of Protection had jurisdiction to award damages to the mother of P in circumstances where "(i) [P] was taken to hospital…by his mother, and (ii) he was not however returned home from the hospital but was moved from that hospital to a placement, the identity of which was kept from the mother." [1] There is no mention at all in the judgment of any standard authorisation. The decision of Charles J was that an application to the Court of Protection for an award of damages to P's mother for breach of her Convention rights was refused, on the basis that the Court had jurisdiction under the Human Rights Act (although he also provided for further proceedings to be listed before him in the Queen's Bench Division.) In my view, this judgment does not assist in the present context.
Careful consideration of Jackson J's reasoning in the Neary case is more illuminating. He was asked to, and did in fact, make declarations about breaches of Convention rights, not about the lawfulness of a standard authorisation – see paragraph 32 of the judgment. He expressly declined to consider the case primarily through the prism of deprivation of liberty (Article 5), and focussed instead on Steven's right to respect for his family life (Article 8) – paragraphs 151 and 152.
Having determined that fundamentally there was a flawed decision to keep Steven from his home and family, he rejected the argument that a standard authorisation could clothe that fundamental illegality with legal entitlement. Furthermore, at paragraph 26, he stated that "the authorisations relied upon were flawed, and even if they had been valid, they would not in themselves have amounted to lawful authority for keeping Steven at the support unit." (emphasis added)
In essence, this approach treats the "dols regime" as a matter of procedure, very much secondary to the underlying question of lawfulness in terms of the Convention. In the matter currently under consideration, there is no issue about underlying lawfulness of arrangements – it is accepted that assessments were properly undertaken and the living arrangements which followed from the conclusions of those assessment were valid. The issue is limited to one of procedure.
The context in which the Neary case was considered ought to be acknowledged. At paragraph 181, Jackson J observed that the procedural expectations identified in respect of granting a standard authorisation were " not likely to be very burdensome, given the relatively small number of cases. " Since then, the understanding of what amounts to a deprivation of liberty has been significantly widened by the Supreme Court in the matter so widely known as to be generally referred to simply as Cheshire West, reported at [2014] UKSC 19 . The number of cases which fall within the DOLS regime is now far from small. Accordingly, procedural requirements do represent a challenge to the strained resources of local authorities. I acknowledge that changed context.
The burden of demand does not however diminish the ratio of the Neary judgment. Jackson J went on to observe that, even if the authorisation process were burdensome, the requirements
I also acknowledge, and fully agree with, that conclusion.
In my judgment, the circumstances currently under consideration are clearly to be distinguished from the circumstances considered by Jackson J in Neary . In this matter, it is accepted that all the underlying assessments were properly completed, without substantive flaw. There is no suggestion that the outcome led the process, as it did in Neary ; and in my judgment, that is relevant to assessing the significance of errors of form.
Ms. Nizami's submission to the appeal hearing was that the statement by Andrew Seymour (the "authoriser") was not considered at the first instance hearing. There is indeed no direct reference to it in the transcript of the hearing. However, that statement was clearly before the judge and moreover, Ms. Nizami's own skeleton argument specifically addressed it at paragraphs 15 – 18 [ A15 ].
In my judgment there are two aspects of the appellant's argument to be considered: firstly whether Mr. Seymour's account of his thinking process was factually accurate, and secondly whether substantive propriety is sufficient in the face of errors of form.
It was not suggested, and is not now being suggested, that YC's representatives should be given an opportunity to challenge Mr. Seymour's account by cross-examination. The Neary case illustrates the kind of circumstances which could form the basis of a plausible challenge, but it is accepted that such circumstances did not arise here. The argument against Mr. Seymour's account is that that the use of the wrong name in the written form on so many occasions (the "scale of errors" argument) calls into question whether he really exercised any powers of scrutiny. That argument is set out at paragraph 16 of Ms. Nzami's skeleton argument. So, it is clear that the position on behalf of YC was put before the judge.
In my judgment, it is also clear from the judge's conclusions (in particular as set out in paragraph 25 above) that Mr. Seymour's account was accepted and the scale of errors argument was not. It was well within the ambit of the judge's powers to accept that evidence and reach that conclusion.
So, where the appellant accepts that underlying assessments were properly conducted and the judge accepted the authoriser's account of his thinking process, the appellant's argument comes down solely to a matter of form. In essence, even if the Supervisory Body's duty of scrutiny was in fact properly discharged, do the errors identified render the conclusion of the scrutiny exercise invalid?
I accept all that is said on behalf of YC in respect of Form 5 being the evidence of proper scrutiny. I agree that it is highly undesirable for Form 5 to leave any doubt as to whom it refers to or whether due process has been followed. However, I do not accept that errors of form necessarily invalidate the authorisation. Even in the serious domain of authorisations of deprivation of liberty, there is room for a degree of pragmatic realism, as is recognised in the ECHR decisions contrasting ex facie invalid orders and prima facie valid ones, and by the 'correcting' provisions of the Mental Health Act. Where there are standardised documents, and inevitable use of information technology (including the availability of 'cut and paste'), it would be disproportionate to conclude that every error of form invalidates Form 5.
I am fortified in this conclusion by paragraph 26 of the Neary judgment: if even a correct ("valid") standard authorisation process cannot legitimise a substantive breach of Convention rights, it would seem logically to follow that an incorrect standard authorisation process should not necessarily invalidate an otherwise proper approach to Convention rights.
The Appellant's scale of errors argument should be considered in this context too. YC's case is put on the basis of there being nineteen errors in the Form 5. As Mr Paget says, it could equally be described as a single error, repeated many times. The impression is indeed created that standardised phrases have been used in the administrative process of writing up a decision – which, I would suggest, is very poor practice – but overall, the frequency with which the same error appears points much more clearly to administrative, than substantive, inadequacy.
It is also argued on behalf of YC that the errors in this matter are of a kind where it is not apparent to the reader of Form 5 whether they are errors of form or of substance; and since the whole point of Form 5 is to evidence substantive propriety, this failure is fatal. This would be more persuasive if the section headed "Evidence of Supervisory Body Scrutiny" were a free-standing document to be read in isolation. In fact, that section is only part of a longer form. It is accepted that all the identifying details in all other parts of the form relate accurately to YC, and that there is no a single instance where the sentence in which the wrong name is used does not otherwise factually apply to YC. In my judgment, again the effect is much more clearly an impression of using standardised phrases in the administrative process of writing up a decision than of substantive inadequacy.
Taking all the circumstances of this case into consideration, I am satisfied that the first instance judge was entitled to conclude that the errors identified in the Form 5 Standard Authorisation relating to YC were merely "typographical." When she expressed her satisfaction that "it is a valid authorisation," and that "it has been valid throughout", the reissuing of the Form 5 in August 2020 being "a fairly cosmetic change" such that the "the date of the validity started off as June and continues all the way through," she was not wrong for the purposes of Rule 20.14(3)(a).
It follows that the appeal cannot succeed. I affirm the substance of (the second) paragraph 1 of the order made on 2 nd November 2020. In my view, the wording of that provision is questionable - it would be more clearly within the scope of the Act if the decision was expressed as dismissal of YC's application for a declaration that the standard authorisation is invalid. However, in making that observation I acknowledge that I have had the advantage of further argument at attended hearing with bundles of authorities provided, whereas the first instance judge was required to make her decision at a remote hearing in the context of a wider list, and to approve the terms of an order several days later.
Notwithstanding that the appeal does not succeed, in my judgment YC's representatives were right to identify the circumstances of this case as a significant issue. In so far as this appeal offers an opportunity to improve practice, that opportunity should not be lost. I therefore invited the parties to make further written submissions, after the hearing, about how errors of form in a standard authorisation should be considered going forwards.
Both parties identify potential for the Relevant Person's Representative ("RPR") to have a role here:
On behalf of YC, it is suggested that an unpaid RPR may be less able critically to review documentation, such ability not being part of the qualifying requirements for appointment. Mr. Paget suggests that a family member RPR may in fact have a better grasp of the relevant person's biographical details. Generalisations are perhaps unwise but experience suggests that unpaid RPRs are often assiduous in their role. However, if assistance is considered appropriate, the additional appointment of an Independent Mental Capacity Advocate ("IMCA") could be considered:
There appears to be broad agreement that the following procedure is both workable and appropriate:
It is not suggested that such procedure would in any way delegate the responsibility of the supervisory for the validity of its authorisations to the RPR; or that it would totally eliminate errors of form. However, in my view it would be good practice and would improve the prospects of identifying and addressing errors promptly, if necessary by a completely new assessment process.
Conscious of the process of reviewing Codes currently underway, and also of the anticipated introduction of the Liberty Protection Safeguards, in my view it would be appropriate now to take such steps as are required to ensure that the relevant Code explicitly includes requirement for the RPR/ "appropriate person" to check the accuracy of the forms.
J. Conclusions
The decision of DDJ Kaufman on 2 nd November 2020 is affirmed. The appeal is refused. The application for a declaration that the standard authorisation granted on 16 th June 2020 in respect of YC's living arrangements is invalid fails.
Nothing in this decision should be taken as undermining the seriousness of the requirements for proper scrutiny by supervisory bodies when considering granting standard authorisations. The errors in this case should not have happened. Rather, it is to be hoped that out of poor practice, the constructive engagement of both parties in this matter can point the way to better practice in the future.
HHJ Hilder
27th May 2021
YC's correct name is used in lines 20, 23, 26, 48, 50 and 52.
Note 1 At paragraph 3 [Back]