If you’ve been appointed as the Relevant Person’s Representative (RPR) for a person subject to the Deprivation of Liberty Safeguards, you are required to identify whether the person wishes to, or would wish to, object to the care arrangements. This isn’t difficult if the person is making a genuine and consistent objection but can be quite difficult to identify for others. It’s an area that attracts much confusion and debate amongst practitioners; whether the person is, or would wish to object to the care arrangements if they could. This is a fundamental consideration because those who represent a person who is considered to be deprived of their liberty have a duty to make an application to the Court of Protection if the person is, or would wish to object to the care arrangements that amount to a deprivation of liberty; regardless of whether they consider it to be in the person’s best interests.
Towards the end of 2016, a long-awaited judgement from Baker J assisted in this matter: RD & Ors (Duties and Powers of Relevant Person’s Representatives and Section 39D IMCAs  EWCOP 49 (The full judgement can be found here. In this judgement, Baker J had to address the following question: “When, if at all, does the requirement under Article 5(4) to assist P to exercise his or her right of appeal to the Court of Protection under s.21A of the MCA arise in cases other than those in which P expresses a clear and consistent objection to the arrangements for his / her care and treatment?”
At paragraph 86, Baker J identified the following guidelines for RPRs which serves as a useful guide to help identify whether the person is, or would wish to, object to the care arrangements:
When P does not express a wish to start proceedings, the RPR, in carrying out his duty to represent and support P in matters relating to or connected with the Schedule, may apply to the Court of Protection to determine any of the four questions identified in s.21A(2) i.e. on the grounds that P does not meet one or more of the qualifying requirements for an authorisation under Schedule A1 ; or that the period of the standard authorisation or the conditions subject to which the standard authorisation is given are contrary to P’s best interests; or that the purpose of the standard authorisation could be as effectively achieved in a way that is less restrictive of P’s rights and freedom of action.
Consideration of P’s circumstances must be holistic and usually based on more than one meeting with P, together with discussions with care staff familiar with P and his/her family and friends. It is likely to be appropriate to visit P on more than one occasion in order to form a view about whether proceedings should be started.
By way of an alternative to proceedings, it may be appropriate to instigate a Part 8 review, or to seek to work collaboratively with the family and the commissioning authority to see whether alternate arrangements can be put in place. Such measures should not, however, prevent an application to the court being made where it appears that P would wish to exercise a right of appeal.
The role of the IMCA appointed under s.39D is to take such steps as are practicable to help P and the RPR understand matters relating to the authorisation set out in s.39D(7)(a) to (e), and the rights to apply the Court of Protection and for a Part 8 review, and how to exercise those rights. Where it appears to the IMCA that P or the RPR wishes to exercise the right, the IMCA must take all practical steps to assist them to do so. In considering P’s apparent wishes, the IMCA should follow the guidance set out above so far as relevant.”