Who guards the guards?

The Court of Protection team at 39 Essex Chambers examine a recent case on responsibility for monitoring standard authorisations.

The recently published judgment in Re W [2016] EWCOP 58 (DJ Ralton) considers who is responsible for monitoring standard authorisation conditions. Managing authorities must comply with them, but who guards the guards?

In the absence of an express statutory obligation, DJ Ralton held that supervisory bodies are under a duty to do so.

This was for three reasons. First, a supervisory body has a discretion to carry out a review of the authorisation it has granted. It cannot exercise that discretion unless “it carries out its own function of considering the standard authorisation and monitoring the conditions that it has imposed” (para 13).

Secondly, Article 5 ECHR requires continued justification of the deprivation of liberty which cannot be done passively by the decision-maker (para 14).

And, thirdly, although “there is an obligation upon the RPR so far as he/she is able to ensure that conditions are complied with”, the RPR’s function is not to monitor compliance and report back to the supervisory body. The RPR [relevant person's representative] acts on behalf of P and does not owe an agency-type duty towards the supervisory body (para 12).

The second legal issue related to how frequently condition compliance ought to be monitored. The judge held that “Frequency all depends” (para 15) and it is essentially a question of fact in each case.

Comment

The legislation’s silence on this significant issue has always been a concern. Authorisation conditions can make a real difference to the person’s care arrangements and well-being so an effective system for monitoring the managing authority’s compliance with them is necessary. Supervisory bodies may well despair at the prospect of having to fulfil this duty, but that is because of the scale of the challenge rather than because of the correctness of the legal principle underpinning it. How they are going to achieve this monitoring role will require careful thought. In the pre-Cheshire West days, for example, we recall some supervisory bodies requiring managing authorities to report back on condition compliance on a regular periodic basis.

There are many other issues relating to conditions that have yet to be determined in the case law. For example, what are the legal implications when authorisation conditions are not fulfilled? Who is responsible for condition breaches? The MCA states that it is managing authorities that “must” comply. But often the work necessary to achieve the condition needs to be undertaken by some other body or person. Hopefully further case law will explore these issues and plug the gaps left by the legislation.

This article was written by the Court of Protection team at 39 Essex Chambers.