Challenging a DoLS: section 21A and the Court of Protection

What is a section 21A challenge?

Section 21A of the MCA gives the Court of Protection power to review a DoLS authorisation. It's how DoLS meets Article 5(4): anyone deprived of liberty must be able to have a court decide speedily whether their detention is lawful (DoLS Code chapter 10).

There's no tribunal under DoLS. The Mental Health Tribunal deals only with the MHA. A challenge to DoLS goes to the Court of Protection, usually brought by the person or their RPR.

What can the court decide under section 21A?

Whether the person is deprived of liberty at all is part of the best interests requirement, which needs them to be a detained resident (Sch A1 para 16(2)). So after AGNI, a challenge can argue there's no deprivation of liberty, or that the person validly consents.

Who can make a section 21A application?

• The person themselves, without permission (s50(1)(a)).
• Their RPR, without permission (s50(1A)).
• An attorney or deputy, without permission, where the application relates to their power (s50(1)(c)-(d)).
• Anyone else, including an IMCA, a relative or the managing authority, with the court's permission. The court weighs their connection with the person, their reasons, the benefit to the person, and whether it could be achieved another way (s50(2)-(3); DoLS Code 10.4).

A s39A IMCA keeps the power to challenge even after an RPR is appointed, but must take the RPR's views into account first (Sch A1 para 161). A s39D IMCA helps the person or the RPR to apply (s39D(8)). See the relevant person's representative.

Legal aid for a section 21A challenge

Legal representation in s21A proceedings isn't means-tested for the person under the authorisation, or for their RPR (Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, reg 5(1)(g)). Anyone else bringing an application faces the usual means test.

So money shouldn't stop a challenge by the person or the RPR. The 2008 Code says only that legal aid is available (DoLS Code 10.13), so check the regulations rather than the Code.

When should a challenge be brought?

• The person objects. If they show, in words or actions, that they want to challenge, the RPR must help them bring it quickly. That's AJ v A Local Authority [2015] EWCOP 5, cited in the ADASS forms guidance.
• A dispute won't resolve. Family disagree with the placement or the restrictions, and informal routes and complaints haven't worked in good time (DoLS Code 10.5-10.6).
• The assessments look wrong. Capacity, eligibility or best interests are genuinely in doubt.
• The conditions or the period are wrong, or the conditions aren't being kept to.
• It may no longer be a deprivation of liberty under AGNI, and a review hasn't settled it.

The Code wants disputes settled informally where possible, but says nobody should be discouraged from going to court when other routes fail (DoLS Code 10.5-10.6).

Review or court?

A Part 8 review is quicker and cheaper for a change in circumstances. The council must carry one out if the person, the RPR or the hospital or home asks (Sch A1 para 102). The court is for genuine disputes, and for anything a review won't settle. See DoLS reviews.

How a section 21A challenge works: step by step

1. Raise the concern with the hospital or home and the council. Many disputes settle there (DoLS Code 10.5).
2. Ask for a review if circumstances have changed, or a requirement may no longer be met.
3. If the person wants to challenge, or the dispute won't resolve, the RPR contacts a solicitor about non-means-tested legal aid. A s39D IMCA can help an unpaid RPR do this.
4. The application goes to the Court of Protection. The authorisation stays in force unless the court varies or ends it.
5. The court decides the questions raised, and can vary or end the authorisation or direct the council to (s21A(3)).
6. If the court ends it, the hospital or home must stop the deprivation of liberty, or find another lawful basis for it.

No authorisation, but there should be one

Sometimes the problem is the reverse: someone seems to be deprived of liberty in a hospital or care home with no authorisation. Anyone except the managing authority can raise it. First, ask the hospital or home to request a standard authorisation or change the care. It should normally respond within 24 hours (Sch A1 para 68; DoLS Code 9.1).

If it doesn't request one within a reasonable time, ask the council to decide whether there's an unauthorised deprivation of liberty. It must appoint an assessor unless the request is frivolous or vexatious, or was already decided with no change since. If it does, the assessment must be done within 7 days (para 69; DoLS Code 9.8). If there is one, the process runs as if a standard authorisation had been requested (para 71).

Section 21A after AGNI

Expect fewer community applications, and a more mixed picture for s21A (Mental Capacity Report, October 2026). Some challenges will now argue that the person isn't deprived of liberty at all, or validly consents. The AGNI test frames both arguments.

Courts may well err on the side of caution. In AR [2026] EWCOP 45, HHJ Burrows said in passing that a court should provide Article 5 rights if there's any serious doubt that the person consents. Where Article 5 isn't engaged, Article 8 and the MCA still protect the person.

What section 21A doesn't cover

• MHA detention. That's for the Mental Health Tribunal.
• Community arrangements. Outside hospitals and care homes, the court authorises a deprivation of liberty itself. See Court of Protection orders.
• Treatment. A DoLS authorisation doesn't authorise treatment, so s21A isn't the route for treatment disputes. Those go to the court under its general powers instead (ss15-16). Whether they should be in that hospital or care home at all is a s21A question.