S21a – getting straight to it, I know it’s the RP’s rights to have a S21a challenge heard when they say they don’t want to be in said Care Home and want to go home etc, however, if the home that they want to go to, doesn’t exist anymore and this is the only stipulated place they want to go to, or if their care needs are so great (evidenced) that this cant be provided at home or the RP doesn’t have funds to pay for at home care, should the RPR still be requesting a solicitor make a S21a challenge. Granted its not for the RPR to make the decision if it is practical for the RP to leave the care home, but surly a 21a where it is obvious that it wont be in the BI of the RP and is therefore clogging up the Court system, which in Wales is a long wait for a court hearing or an attending solicitor visit, where does the RP stand, especially when you have a Supervisory Body asking why a challenge hasn’t been made.
Any direction would be greatly appreciated as it seeming ludicrous that 21a’s are being placed/requested when the final request is not feasible.
I understand your concern about limited resources but Article 5(4) ECHR is absolute, in that anyone can challenge their detention, no matter how hopeless their case appears to be. This was set out in a very old ECtHR case Waite v UK (2003): “Article 5(4) is first and foremost a guarantee of fair procedure for reviewing the lawfulness of detention – an applicant is not required, as precondition for enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his release.”
A person detained under the MHA gets a tribunal irrespective of the severity of their depression, psychosis or dementia. This has never been the case with people subject to a DoLS authorisation.
Having said that, this illustrates the acute tension between the limited resources of local authorities and the courts on one hand, and individual human rights on the other.
There is however, quite detailed guidance for the RPR (and possibly IMCA) regarding whether or not to initiate a s21A challenge, from Baker J in Re RD & others [2016] EWCOP 49 (para 86).