Regional Applications Scheme Launched.

We have been asked to publicise an important change to the way in which health and welfare applications and section 21A applications are issued.

As the regionalisation project moves ahead, these applications will be issued from regional centres, starting with the South West (Bristol) Regional Hub, as from 30 April 2018.

The other regional centres will begin issuing their own applications from 25 June 2018.

This does not apply to serious medical treatment cases or to property and affairs cases.

Practitioners may have received a letter from HMCTS with essential information about how the new process will work, including how issue fees should be paid.  You can read the letter here.

HMCTS explain that they will try to attend user group meetings in the regional hubs before the pilot starts in that reason.

 

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Accredited Legal Representatives Scheme Launched

We are very pleased to confirm that on 2 April 2018 HMCTS introduced the process of appointing accredited legal representatives (ALRs) of the court’s own motion, in appropriate cases.  This means that the “menu” of options for representing P, as set out in COPR r1.2 is now complete.

We hope that the court will take advantage of the cadre of ALRs who have gone through what appears to be the testing process of securing appointment to the Law Society’s Mental Capacity Accreditation Scheme.

We’re aware that some practitioners have expressed concern that, in circumstances where P has been referred by his or her RPR to a solicitor who has secured legal aid, the court may then appoint a different solicitor as ALR.  There are understandable anxieties about lack of continuity for P and duplication of work.

We suggest that there is a pragmatic solution.  A solicitor who has been working with P, perhaps after a referral by an RPR, and who then issues a section 21A challenge could file a statement alongside Form DLA which sets out the solicitor’s involvement with P so that the court is aware of the issue of continuity when deciding which of the rule 1.2 options to select.  An accredited solicitor who wishes to be appointed as such could also file a COP9 requesting appointment.

We are very interested to hear about the experience of practitioners as the new scheme gathers pace.

Costs and test cases

In a short judgment Mr Justice Baker declined to award the Official Solicitor his costs after a CCG withdrew applications in relation to a series of test cases.  You can read the judgment here.

The case concerned applications in relation to the living arrangements of incapacitated adults for whom the CCG had responsibility.  All were living in their own home and the CCG sought clarification as to whether such individuals satisfied the “acid test”.  The CCG also questioned whether the responsibility for any deprivation of liberty was imputable to the state solely by virtue of the fact that it provided NHS care for P.  If either the acid test was not satisfied or the arrangements were not imputable to the state, of course, the adults concerned would not be deprived of their liberty for the purpose of Article 5 and thus the CCG would not be required to make an application to court for a welfare order under section 16 MCA 2005.

The Official Solicitor was invited to act for the four adults originally involved in the test case.  Two were not eligible for legal aid and it was not considered reasonable to utilise P’s funds for this purpose.  Subsequently one of these cases could proceed and the CCG applied to withdraw its application because the practical impact would be very limited; the CCG had reviewed its position in light of the OS’ analysis and the CCG considered that both the relevance and the strength of the application had been limited by the Law Commission’s proposed reforms.  The Official Solicitor sought his costs, submitting that in reality the application was akin to a civil claim where he had succeeded.

Baker J refused the application.  He gave no weight to the argument that the costs would be borne by the public purse in the form of the Legal Aid Agency stating that a legally aided party should be treated in exactly the same way as one without a legal aid certificate.  He rejected the application for costs in these terms:

 

(1) I do not accept the suggestion that this was not a typical welfare case. The application concerned a series of welfare cases in which an important preliminary issue arose on a point of law.(2) As is widely recognised, the law concerning deprivation of liberty under the Mental Capacity Act is in a state of some uncertainty. That is why it has been the subject of a review by the Law Commission whose final report contains recommendations for substantial reform. The government has now accepted the report and the majority of its recommendations, and acknowledged that the current Deprivation of Liberty Safeguards should be replaced “as a matter of pressing urgency” (see government response 14 March 2018).

(3) It was in my judgment understandable that the applicant sought guidance on the issue of the impact of the “acid test” on cases involving incapacitated adults living at home, given the large number of individuals in those circumstances for whom it is responsible. In the words of rule 159(2)(b), it was reasonable for the applicant to raise and pursue this issue.

(4) Given the constraints under which all public bodies operate, the applicant was entirely justified in keeping under review the question of whether to pursue the case. Indeed, it would have been remiss if it had not done so. The fact that the applicant decided to abort the proceedings was a reasonable decision. To use the words in rule 159(2)(b) again, it was reasonable for the applicant to decide not to contest the issue in the light of developments in the litigation as described above.

(5) Although it is arguable that the difficulties in the individual cases could have been anticipated, I do not think that the applicant’s failure to do so at an earlier stage could be described as litigation conduct of the sort to justify departing from the general rule.

(6) Although my comments in G v E (Costs) above were made in a different context, they do have some relevance here. Professionals working in this field often face difficult judgements and decisions. The applicant made the decision to ask the court to consider the preliminary issue which, as Mr Ruck Keene fairly conceded, involved propositions of general and considerable importance. Subsequently, however, in the light of developments within the cases, the applicant decided not to pursue the issue. In all the circumstances, I do not consider that its decision-making and overall conduct justifies a departure from the general rule as to costs.

Comment:  This is a useful application of the principles concerning costs to an unusual situation namely where an important preliminary issue arises in a “typical welfare case”.  Key to this was the judge’s assessment that it was reasonable for the CCG to seek guidance about the applicability of Article 5 given the significant financial impact in a time of financial constraints had the CCG been successful; but that it was also reasonable to keep the need for the proceedings under review and to seek to withdraw them when the issue, although fascinating, had become academic.

Law Commission Deprivation of Liberty report – the Government responds

The Government published its response to the Law Commission’s Mental Capacity and Deprivation of Liberty report on 14 March.  The headline is that the Government “agree[s] in principle that the current DoLS system should be replaced as a matter of pressing urgency,” and that it will legislate in due course.  Before the introduction of any new system, the Government has said that it will “need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.”

In its detailed response, the Government has accepted, or accepted in principle, all of the recommendations except (1) the recommendation relating to a statutory codification of capacity law in relation to children; and (2) four areas which it has left for the independent Mental Health Act review to consider.

Deckchairs on the legal Titanic? The Re X saga continues

In Re KT & Ors [2018] EWCOP 1, Charles J has returned – again – to the vexed question of how Re X applications (now, strictly, COPDOL11 applications) can proceed where there is no-one can properly play the part of Rule 3A (now Rule 1.2(5)) representative.  Charles J considered four test cases of the 300 or so that have now been stayed in accordance with his decision in Re JM [2016] EWCOP 15, there being no family member or friend is available for appointment as P’s Rule 1.2(5) representative.

Background

In early 2017, the Government Legal Department had written to local authority applicants in stayed cases to indicate that (1) the most appropriate course of action was for the local authority to identify a professional advocate; but (2) where one was not available, the local authority should liaise to take forward the process of commissioning a Court of Protection General Visitor to complete a report under s.49 MCA 2005. The GLD letters indicated that Ministers had agreed to provide funding to HMCTS to enable greater use of visitors by the COP. On the basis of these letters, two applicant local authorities sought to lift stays in four cases, which were listed before Charles J as test cases.

Charles J, it is fair to say, was unimpressed by the GLD letters, noting that they were devoid both of detail as to extra funding, and also how and why it was now said that a professional advocate had or had always had been a practically available option in a significant number of cases. Following directions made in the test cases, the Secretary of State filed submissions which asserted that local authority applicants owed a duty under s.6 Human Rights Act 1998 “to facilitate the speedy resolution of the application by (for example) ensuring that a professional advocate is appointed to represent P’s interests so far as necessary“. It was asserted that this duty: “falls into the same category as the DOLS duties which were considered in Liverpool City Council,” the unsuccessful judicial review brought by local authorities to seek to compel greater funding to discharge their DOLS obligations. As Charles J noted that, this was a radical departure from the position that had previously been taken by the Secretary of State in JM, where it had been agreed that local authority and other applicants do not owe a statutory duty to provide representation for P in the COP.

Whose obligation to provide representation for P?

Charles J expressed the preliminary view that the Secretary of State’s argument as to the obligation of local authorities under the HRA was wrong, running counter to the decision on the obligations of a local authority in Re A and C [2010] EWHC 978 (in particular at paragraph 96) and its application in Staffordshire County Council v SRK and others [2016] EWCOP 27 and [2016] EWCA Civ 1317.  However, even if they did owe such a duty, Charles J held that this did not assist the Secretary of State because the central, statutory, obligation lay with the Secretary of State for Justice to ensure that the COP, as a public authority, acts lawfully and so can apply a Convention compliant and fair procedure.

Visitor as Convention-compliant procedure?

Charles J agreed with the agreed position of both the applicant local authorities and the Secretary of State that the appointment of a Visitor would provide a fair and Convention compliant procedure because it would provide the essence of P’s Article 5 procedural rights, which had been identified in Re NRA & Others [2015] EWCOP 59 as requiring an independent person to: (1) elicit P’s wishes and feelings and make them and the matters mentioned in s.4(6) MCA 2005 known to the Court without causing P any or any unnecessary distress; (2) critically examine from the perspective of P’s best interests, and with a detailed knowledge of P, the pros and cons of a care package, and whether it is the least restrictive available option; (3) keep the implementation of the care package under review and raise points relating to it and changes in P’s behaviour or health. Charles J set out draft directions which could be made in cases where a Visitor was proposed.  Charles J acknowledged that there were both advantages and disadvantages to the appointment of a Visitor over a family member or friend, the advantages being the independence and expertise of the visitor, the disadvantages being the absence of a more regular review on the ground by someone who knows P and wants to promote their best interests.

Having conducted a detailed review of the (depressing) evidence before him, Charles J did not consider that the offer to fund Visitors by the Secretary of State was likely to offer anything but a short-term or a very partial solution to the issue. However, he held that this should not stop it being used for so long as it was available in practice.

Order of preference

In light of the matters set out above, Charles J had to resolve an issue as to whether, where no family member/friend is available to as Rule 1.2(5) representative, the second choice should be a Visitor (the local authorities’ position) or a professional representative (the Secretary of State’s position). In reality, as he noted, the dispute was based upon the budgetary battle between local and central government. In the abstract, Charles J considered, the appointment of a professional who could act independently as a Rule 1.2(5) representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a Visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a Visitor.

However, given that there was no evidence that professional representatives were actually practically available in most cases, Charles J held that if he had to make a choice, he would choose a Visitor. He recorded the sensible acceptance by the Secretary of State that generally the COP can and should accept an assertion from an applicant authority that a professional Rule representative is not available for appointment at face value.

Joinder of the Crown/further stays

Charles J has no intention of letting the Government off the hook, noting at para 91 that:

In cases where a visitor is appointed (or some other available procedure is adopted to enable an application or review to proceed) there is no need to, or purpose for joining, or continuing the joinder of, the Crown. But, as soon as any such practically available process is no longer available I consider that, for the reasons given in JM and earlier in this judgment the COP should join the Crown to and stay such applications and reviews.

Way ahead

Charles J suggested that the Secretary of State, the Public Guardian and the COP (through the Senior Judge) try to agree a process by which the stays are lifted in the approximately 330 stayed cases on the same basis as in these cases. He indicated that in cases in which local authorities (or, presumably, other applicants) have not sought to lift the stay, an appropriate course would be for the Secretary of State to apply to lift the stay in a manner that ensures that a visitor will be available for appointment in each case. However, he left the ultimate decision as to how best to clear the backlog to the triumvirate set out above.

Comment

The decision in Cheshire West has caused huge resource implications. The Law Commission has estimated the cost of full compliance at £2.155 billion per year. One of the local authorities before the court, Wolverhampton, had brought 24 applications over the past 3 years, and estimated that that three times the present number should have been brought, the numbers being likely to increase with service users moving to supported living. The Law Commission had estimated that around 53,000 people are deprived of liberty outside hospitals and care homes, and calculated that this would cost local authorities and the NHS £609.5 million per year to authorise by obtaining welfare orders from the COP.   Only a very small fraction of these applications are being made, although between January and March 2017, there were 969 applications relating to deprivation of liberty, up 43% on the equivalent quarter in 2016 (678). Of these, 600 were Re X applications.

In the circumstances, it is hardly surprising that Charles J considered that funding to provide an additional 200 Visitor reports a year hardly scratched the surface of the problem. As he recognised, his analysis of the position represents, in essence, the re-arranging of deckchairs on the legal Titanic. LPS – and/or or a radical rethinking of the law relating to deprivation of liberty – cannot come soon enough.

Guest Post by Zena Soormally on the duties of ALRs

We’re very pleased to include this post by Simpson Millar’s Zena Soormally, which summarises the guidance from the Law Society on the role of ALRS.

“Having read the new Law Society Practice note on Accredited Legal Representatives (“ALRs”), I thought I’d summarise a little of what I now understand the role to entail and my thoughts for the views of those who are interested. Please note that you can only access the note if you are registered with the Law Society and, even when you do access it, it has the usual status of guidance from the Law Society, it is not binding:

  • If you act as ALR, P will be understood to be your client (notwithstanding that ALRs are appointed by the court so you won’t have your usual solicitor/client relationship)
  • If the court wishes to appoint you as an ALR (where you are accredited by the Law Society) the court needs your permission before you are so appointed – so there will be scope to work out your case load obligations at the time and funding issues (although there doesn’t appear to be any guidance about the ramifications, if any, if you refuse to take a case a number of times)
  • The ALR invitation can be made on courts own initiative or on application
  • The COP has to consider, as with all cases, at the start, whether an ALR should be appointed, or whether P should participate in some other way (Rule 3A) – generally that will be, in summary (1) ALR, (2) LF, (3) Rule 3A Rep, or some other direction
  • The Law Society Guidance suggests that the following cases are likely to require a litigation friend, not an ALR: where

o   expert evidence is needed – arguably quite a lot of cases will fall in to this category

o   the case is “complex” – although no definition or guidance is given to define what ‘complexity’ will look like

o   there are a wide range of issues to consider, and

o   the case involves 16-18 year olds who are a party

  • In other cases, a Rule 3A rep might fit the bill better.
  • In many cases, it’s possible that no representative of P at all will be needed, as is the case is non contentious – e.g. COP Property and Affairs cases
  • It is more likely that an ALR will be appointed if issues are relatively defined.
  • It may be that you will be appointed as ALR at first but then need a litigation friend as case becomes more complex or contentious. It will be up to the litigation friend whether they then instruct the ALR as solicitor going forward, although I can see benefits of that.
  • Once appointed as ALR, the usual processes follow as if you were a solicitor, as far as I can tell – e.g. see client, obtain and consider docs etc.
  • The COP’s list of ALRs will be updated monthly. It is up to the COP how it will allocate those cases and, as far as the guidance says, there is likely to be regional differences in approach, which will no doubt cause some issues for lawyers in practice while transition takes place to the new approach.
  • The guidance provides interesting guidance in relation to client care letters: P will be the ALR’s client but anyone acting as ALR will need to consider putting together an appropriate client care letter in line with the guidance and the SRA Code. If it is inappropriate to send a letter, ALRs will be expected to retain a copy on file with a note explaining why it wasn’t appropriate to send one.
  • ALR’s must adhere to SRA code of conduct, as would be expected.
  • ALR’s are not expected to send anyone else in their place to meet with P (which makes sense and must, in my view, be right, but which some senior solicitors may struggle with, if they routinely send out junior staff for client meetings, rather than attending in person).
  • ALRs will need to make sure,

o   as they already should , that they have regard to, and implement, Mr Justice Charles’ guidance on the Participation of P, and

o   even if you are unfamiliar with it now, that you have read the guidance re Rule 11 (7) (B) rules for MHT work, as there is overlap specifically mentioned in the guidance.

  • As with a litigation friend, the role of ALR is to put forward a case in P’s best interests, not always just what P wants, although you must always make P’s wishes and feelings clear. Whatever happens, if you are unsure what to do, the advice appears, sensibly, to be that you should make an application to the COP (on notice or not) under Rule 148A to seek guidance.
  • Solicitor ALR’s can conduct own advocacy in COP but you can also instruct Counsel if you wish – although, as always, they must have the right experience.
  • The duties to your ‘client’ section of the guidance, including the sections on confidentiality, disclosure and privilege, cause me some concern, given the practice of preparing notes of visits to P, where they lack capacity to conduct proceedings, and reporting everything said to the COP by way of witness statement: I am not sure, in practice, how the balance will be struck under the ALR role, where there is no client to seek instructions from on the issue of whether something should be withheld from the statement or not. In practice, it may result in further applications to the COP for guidance, until the case law has developed to provide that guidance.
  • Funding: this is still a pain as far as I can see but the updated information is helpful. Essentially, as I understand it, it works as if you are a litigation friend, save that you have to ask the LAA to exercise its discretion under Regulation 30 (5) to waive the need for a signature on the LAA forms. However, that doesn’t help the fact that you can only get legal aid if P is a party, wishes to be joined as a party and/or is contemplating proceedings. None of those will apply to a lot of the ALR cases, so, I imagine, that means that LAA funding will not be available unless P is, in practice, a party. That may, in effect, just mean that, until the funding issues are resolved, P will be routinely joined as a party, with an ALR. All the other usual LAA rules apply as do the usual rules with regards to private funding and/or seeking undertakings on costs from the relevant public body if legal aid isn’t available.
  • Non LAA practitioners can become ALRs but they cannot accept cases where P is, or may be, eligible for legal aid. The borderline eligibility cases and/or those where P isn’t eligible but will be in the near future (perhaps because of built up savings) will no doubt therefore, need to go to LAA practitioners only).
  • There will be some lag between being invited to act as ALR, and actually being able to accept, because of the work needed to establish LAA eligibility. You will not have funding to carry out that work, so we will be taking over the role, which the OS usually has to deal with, to investigate eligibility without funding being it place – that may, in some of these cases, require a number of letters and calls, which isn’t appealing, but isn’t always too onerous.
  • The guidance specifically reminds ALRs to be mindful of advising/taking forward any linked issues with regards to judicial review and/or damages claims BUT note that as ALR you have no magic status to take such a matter forward and, as in cases now, you would no doubt need to approach someone (perhaps the OS) to act as litigation friend in those other non COP cases if you see something that needs to be progressed. I imagine, if an ALR case became a case that required linked involvement from the OS as litigation friend, the OS would also see good reason to act as litigation friend in the ALR case.
  • Don’t forget to have regard to the case of Re RD when dealing with s21A cases, in the usual way.”