An introduction to s.21A Mental Capacity Act 2005 challenges

One of the many ways a care provider may find themselves involved (albeit often on the periphery) of Court of Protection proceedings, is via a s.21A Mental Capacity Act 2005 challenge.

What is s.21A Mental Capacity Act 2005?

The Mental Capacity Act 2005 is a piece of protective legislation, designed to promote an individual’s autonomy.

Where a service user is subject to a deprivation of liberty, as authorised by Schedule A1 Mental Capacity Act 2005 (a Standard Authorisation), the individual has a right to challenge the authorisation under s.21A Mental Capacity 2005, known as a “s.21A challenge.”

Such a challenge is brought by the individual, with the assistance of their Relevant Person’s Representative (RPR), or Independent Mental Capacity Advocate (IMCA). A challenge should be brought as soon as possible once their objection to the Standard Authorisation is known.

A s.21A challenge seeks judicial scrutiny of the mental capacity and best interests qualifying requirements to the Standard Authorisation, triggering a process of information gathering and testing.

What is expected of care providers?

Despite providing accommodation and care to the individual at the centre of a s.21A challenge, providers are often only peripherally involved in proceedings. It is rare for a provider to be formally joined as a party to proceedings.

Rather, a provider will be expected to assist the parties and court with the following (by way of a non-exhaustive list):

  1. Compliance with a Third Party Disclosure Order for care home records and care plans
  2. Attendance at a round table meetings to discuss available options
  3. Facilitating visits by an individual’s Relevant Person’s Representative or Litigation Friend
  4. Facilitating judicial visits
  5. Provision of information to commissioners regarding an individual’s needs assessment
  6. Compliance and reporting on Standard Authorisation conditions
  7. Reporting on community access and activities offered

Ensuring notes and assessments (in particular capacity assessments and best interests decisions evidencing proper application of the MCA and Code of Practice) are sufficiently detailed, clear, contemporaneous and easily accessible is key to being able to comply with requests in a timely manner.

If you would like further information or to arrange bespoke training, please contact a member of our social care team.

First published in Care Home Management magazine, November/December issue 2022