The Court of Protection Rules 2017 have been laid before Parliament, to come into force on 1 December. These recast all of the Rules into the same format as the Civil Procedure and Family Procedure Rules. The new-look Court of Protection Rules will also incorporate those rules relating to case management which have, since September 2016, been implemented by way of the Case Management Pilot. Accompanying – renumbered – Practice Directions (not yet published) will also cement into the practice of the Court the Transparency Pilot and the Section 49 Report Pilot.
LAG will shortly be publishing a revised second edition of the CoP Handbook and supplement with the new Rules and an introductory text outlining key changes since the publication of the second edition.
Congratulations to the first cohort of accredited legal representatives (ALRs) who have been approved by the Law Society. You can find details about the Law Society’s Mental Capacity (Welfare) Accreditation Scheme here.
Those who have been awarded the status of ALR can now be appointed directly by the Court of Protection under Rule 3A. Rule 3A (2) (b) allows the Court to direct that:
“P’s participation should be secured by the appointment of an accredited legal representative to represent P in the proceedings and to discharge such other functions as the court may direct”.
Rule 3 A makes it clear that the court has to give thought in every case to how P should take part in the case. It gives the court a menu of options of which the ALR is one. The factors the court should consider when deciding which of the options to select include:
“(a)the nature and extent of the information before the court;
(b)the issues raised in the case;
(c)whether a matter is contentious; and
(d)whether P has been notified in accordance with the provisions of Part 7 and what, if anything, P has said or done in response to such notification.”
Practice Direction 2A provides some further guidance at paragraphs 9-10:
- An accredited legal representative is defined in Rule 6. When such representatives exist one can be appointed whether or not P is joined as a party and this may be of assistance if urgent orders are needed, particularly if they are likely to have an impact on the final orders (e.g. an urgent order relating to residence).
- When P lacks capacity to conduct the proceedings and is made a party an accredited legal representative is not intended as a substitute for a litigation friend, but as an alternative in a suitable case (or in the early stages of the case).
No doubt caselaw will develop as to the proper use of ALRs. So far we are aware of two references to their use in reported cases: HSE v PD  EWCOP 48 (at ) and Re JM  EWCOP 15 (at ). In both cases, the court was concerned with the potential use of ALRs in cases where P has not been joined as a party.
However the appointment of an ALR is also as we have seen a possible alternative to a litigation friend in an appropriate case. There seems no reason why an ALR should not be proactive in, for example, a Section 21A application where a solicitor who is a member of the ALR scheme has been approached either by P or an RPR. In such a case the solicitor may consider filing a witness statement confirming their accreditation, describing their interaction with P and explaining why this could be a suitable case for P to participate through the appointment of an ALR rather than via a litigation friend. Our precedent for a first directions order in a section 21A includes provision for the appointment of an ALR.