Remember that 1 December sees the coming into force of the new look CoP Rules and accompanying Practice Directions. All of these can be found most easily on the Court of Protection Handbook website here, together with a handy destination table to show where the old Rules have gone. The changes and their background are discussed in the November 39 Essex Chambers Mental Capacity Report here.
The revised second edition of the Court of Protection Handbook is now out, including an update on key developments over the past year, and a copy of the new Court of Protection Rules 2017. Those kindly people at Legal Action Group have also prepared a supplement with the update and the Rules. This will be sent out automatically (for free) to people who bought the second edition directly from LAG but can be requested (by email to firstname.lastname@example.org) for free by those who bought from other outlets. It can also be found as a PDF here, and will shortly be available (again for free) as an eBook from Amazon.
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.”
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.
The Transparency Pilot approach and that previously provided for in Serious Medical Treatment cases has now been merged (in fact, the merging took place in March but the new order has only just been published).
The Vice-President has published an explanatory note, which we reproduce below:
This note is a public document.
In the schedule to my judgment in V v ANL  EWCOP 21 I set out a number of points relating to the Transparency Pilot (and so the order made under it restricting reporting – the Pilot Order) and the reporting restrictions orders made in serious medical cases to which Practice Directions 9E and 13A continued to apply (RROs).
Since then the ad hoc Committee on the COP Rules has considered the amalgamation of the two approaches and as a result has recommended that a further amendment should be made to the Transparency Pilot to achieve the result that it applies to all proceedings in the COP apart from applications for committal. I am very grateful to those who gave up their time to do this work.
This recommendation has been accepted and means that further changes will be made to the standard Pilot Order. The new version is attached.
It is hoped that the changes make it clearer by the use of headings.
The amended Pilot Order:
- is still directed to those who attend or find out what happened at an attended public COP hearing, and so is not directed to the world at large which the RROs were,
- still does not contain a schedule identifying those who cannot be identified,
- contains alternatives relating to its duration (which reflect the old Pilot Order and the RROs) for selection by the judge,
- now does contain a list of what is not restricted by the order, which is modelled on, but does not replicate, the list in the RROs, and
- provides that the injunction does not apply to a public hearing of, or the listing for hearing of, any application for committal.
A change for serious medical cases is that prior notice of the making of a Pilot Order will not be given to the media. On that topic in the Schedule to my judgment in V v ANL I said:
“To my mind proper notification to the media of the existence of the proceedings and of the date of the public hearing of a case relating to serious medical treatment and the terms of any reporting restrictions order made when a public hearing is directed is what really matters. And when that order follows a standard process referred to in a practice direction or rules it seems to me that:
- there are compelling reasons why the parties bound by the reporting restrictions order need not be notified of the application (see s. 12(2) of the HRA 1998), particularly if they are defined by reference to those who attend the public hearing (or get information from those that do), and
- this view is supported by the approach of the Court of Appeal in X v Dartford and Gravesend NHS Trust (Personal Injury Bar Association and another intervening)  1WLR 3647 in particular at paragraphs 25 to 35.
If those bound by the order (and so the media) have such notification they can then attend the hearing knowing, in general terms, what the case is about and the terms of the reporting restrictions order and they can challenge that order then or at another time.”
The accepted recommendation reflects those comments and other points in that Schedule relating to notification and the old Pilot Order and RROs.
This change to the Transparency Pilot is part of an important exercise that is directed to finding the best approach to achieving the result that, on a case by case basis, the COP identifies and directs the correct balance between Articles 8 and 10 and thereby correctly promotes the powerful public interests they engage and reflect.
It is recognised that it is important that cases are appropriately described when they are listed to provide information to the public at large of what they are about and when and where they will be heard. Comment on how this should be and is being done is welcomed. As is more general comment on how the public and the media can make themselves aware, or should be made aware, that certain types of case are due to be heard and a Pilot Order has been made in them. Such comments should be directed to email@example.com as The Secretariat for The Court of Protection Ad Hoc Rules Committee or to me or the President of the COP.
The Hon Mr Justice Charles
Vice President of the Court of Protection
Date: March 2017
The Law Society’s Mental Welfare Accreditation scheme has now launched, designed both to enable to produce a cohort of individuals able to act as Accredited Legal Representatives (i.e. able to represent P directly without a litigation friend when P is joined to Court of Protection proceedings) and also, more broadly, to enable the accreditation of legal practitioners with specific expertise in welfare matters before the Court of Protection. For more details, see further here.