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 email@example.com) 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.”
Accompanying the new Rules to come into effect on 1 December 2017 (assuming Parliamentary approval), a new suite of Practice Directions will also be brought into force. A table is set out below, and the PDs can all be found here.
For the most part, the substance of the Practice Directions is the same as that contained in the existing ones, although recast to reflect the renumbering in the Rules. Important points to note are:
1. Practice Direction 3B, consolidating into the practice of the Court the case management pilot approach to case pathways
2. Practice Direction 4C, consolidating the transparency pilot into the practice of the Court
3. Practice Direction 17C, consolidating the s.17 pilot approach
4. Practice Direction 24C, providing for transition arrangements in the following terms
Applications received after commencement
2. If an application under the Previous Rules or the pilot Practice Directions is received at the court on or after commencement [i.e. 1 December], it will be returned.
3. However, an application made under the Rules using the version of the relevant form which was current immediately before commencement will be accepted until close of business on 12 January 2018, or such later date as the Senior Judge may direct.
Applications received before commencement
4. The general presumption will be that any step in proceedings which were started (in accordance with rule 62 of the Previous Rules) before commencement which is to be taken on or after commencement is to be taken under the Rules.
(Rule 62 of the Previous Rules provides that proceedings are started when the court issues an application form at the request of the applicant.)
5. However, the general presumption is subject to any directions given by the court, which may at any time direct how the Rules are to apply to the proceedings.
6. Any step already taken in the proceedings before commencement in accordance with the Previous Rules or the pilot Practice Directions will remain valid on or after commencement.
Orders made before commencement
7. Where a court order has been made before commencement under the Previous Rules or the pilot Practice Directions, the order must still be complied with on or after commencement.
Finally, it should be noted that Practice Direction 9E, concerning serious medical treatment, is not carried over into these new provisions, so that it will fall away on 1 December 2017. At time of writing no replacement has been proposed.
|Practice Direction 1A – Participation of P|
|Practice Direction 2A – Levels of judiciary|
|Practice Direction 2B – Authorised court officers|
|Practice Direction 2C – Application of the Civil Procedure Rules 1998 and the Family Procedure Rules 2010|
|Practice Direction 3A – Court’s jurisdiction to be exercised by certain judges|
|Practice Direction 3B – Case pathways|
|Practice Direction 4A – Hearings (including reporting restrictions)|
|Practice Direction 4B – Court bundles|
|Practice Direction 4C – Transparency|
|Practice Direction 5A – Court documents|
|Practice Direction 5B – Statements of truth|
|Practice Direction 6A – Service of documents|
|Practice Direction 6B – Service out of the jurisdiction|
|Practice Direction 7A – Notifying P|
|Practice Direction 8A – Permission|
|Practice Direction 9A – The application form|
|Practice Direction 9B – Notification of other persons that an application form has been issued|
|Practice Direction 9C – Responding to an application|
|Practice Direction 9D – Applications by currently appointed deputies, attorneys and donees in relation to P’s property and affairs|
|Practice Direction 9E – Applications relating to statutory wills, codicils, settlements and other dealings with P’s property|
|Practice Direction 9F – Applications to appoint or discharge a trustee|
|Practice Direction 9G – Applications relating to the registration of enduring powers of attorney|
|Practice Direction 10A – Applications within proceedings|
|Practice Direction 10B – Urgent and interim applications|
|Practice Direction 11A – Deprivation of liberty applications|
|Practice Direction 12A – Human Rights Act 1998|
|Practice Direction 13A – Procedure for disputing the court’s jurisdiction|
|Practice Direction 14A – Written evidence|
|Practice Direction 14B – Depositions|
|Practice Direction 14C – Fees for examiners of the court|
|Practice Direction 14D – Witness summons|
|Practice Direction 14E – Section 49 reports|
|Practice Direction 15A – Expert evidence|
|Practice Direction 17A – Litigation friend|
|Practice Direction 17B – Rule 1.2 representatives|
|Practice Direction 18A – Change of solicitor|
|Practice Direction 19A – Costs|
|Practice Direction 19B – Fixed costs in the Court of Protection|
|Practice Direction 20A – Appeals|
|Practice Direction 20B – Allocation of appeals|
|Practice Direction 21A – Contempt of court|
|Practice Direction 22A – Civil restraint orders|
|Practice Direction 23A – International protection of adults|
|Practice Direction 24A – Request for directions where notice of objection prevents Public Guardian from registering enduring power of attorney|
|Practice Direction 24B – Where P ceases to lack capacity or dies|
|Practice Direction 24C – Transitional provisions|
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.
Once again we are all indebted to Cardiff Law School for further research about the use of the Court of Protection in welfare cases. Their full report can be found here, and the executive summary here.
We hope you will find time to read the report but set out below the authors’ key findings:
- Unlike its predecessor jurisdiction in the Family Division of the High Court, the work of the CoP leans more strongly towards social welfare questions such as where a person lives and how they are cared for than medical treatment. Local authorities are now the main users of the CoP’s welfare jurisdiction – they are involved more frequently in CoP litigation than NHS organisations.
- Cases about relationships – who a person has contact with, and whether they have the mental capacity to consent to sex or marriage – are among the most complex in the CoP’s jurisdiction. They typically involve more parties and hearings, take longer and cost more than other kinds of case.
- We estimate that a typical welfare case in the CoP can cost local authorities around £13,000, but found examples of cases costing considerably more than this. The cost to public authorities of welfare litigation in the CoP may have a chilling effect on their willingness to refer disputes to court where appropriate. For P and families who do not qualify for legal aid, the cost of litigation may be a major barrier to accessing justice.
- We found little evidence that P or families were using the CoP’s main personal welfare jurisdiction to challenge decisions made under the MCA; in our sample it served primarily as a vehicle for public bodies to seek authorisation for best interests decisions. However, the procedure for asking the court to review a deprivation of liberty safeguards authorisation provided a vehicle for P and others to challenge assessments that they lacked mental capacity, or best interests decisions, about a wide range of matters including: disputes about serious medical treatment, contact with friends or family, and consent to sex or marriage. We raise concerns that recent rulings by the Court of Appeal may close down the only realistically available route into the CoP’s welfare jurisdiction for these fundamental human rights matters.
- We found few indications that P was routinely participating in CoP welfare proceedings. We hope that following the introduction of new rules on participation this picture has changed since our research took place.