A dedicated multi-disciplinary group are working up a proposal for Court of Protection mediation scheme, and would very much welcome input from those willing to comment on the draft proposal as it stands, covering as it does (a) cases suitable for mediation; (b) when to mediate; (3) the mediators; (4) the scheme; (5) funding; and (6) evaluation of mediation. Please email Katie Scott (firstname.lastname@example.org) if interested. Your help would be most appreciated by 3 April.
The CoP forms have moved today (21 March) to the .Gov.uk website, and can be found here.
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.
In Re KT & Ors  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  EWCOP 15, there being no family member or friend is available for appointment as P’s Rule 1.2(5) representative.
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  EWHC 978 (in particular at paragraph 96) and its application in Staffordshire County Council v SRK and others  EWCOP 27 and  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  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.
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.
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.
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.”