England and Wales Court of Protection Decisions

COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/12/2011

Mr Justice Mostyn:

1. These Court of Protection proceedings concern AB, aged 81, whom I shall call "Albert" in this judgment.
2. Albert is said to suffer from vascular dementia and memory and cognitive impairment. He also suffers from poorly managed diabetes. In December 2010 he was admitted to hospital; this is said to have been occasioned because of neglect of his care and health. In January 2011 he was discharged to BR Rehabilitation Centre for Dementia for a multidisciplinary assessment. There does not appear to have been any involvement from an Independent Mental Capacity Advocate (IMCA), or a best interests meeting, at the stage at which his next placement was considered.
3. The first standard authorisation was made by the First Respondent Local Authority (LCC) in respect of Albert's placement at B Care Home (BCH) in April 2011. A further standard authorisation was made for 26 weeks on 10 June 2011, which is the subject of the active challenge of which I am seised.
4. At a hearing on 2 November 2010 I appointed Natalie Wood, Albert's Relevant Person's Representative (RPR), as his litigation friend, subject to confirmation of her consent to act. This she provided the following day after consultation with the IMCA manager at Central Advocacy.
5. Although I was wholly satisfied on the evidence and the submissions that the appointment should be made I directed, in order to assist in the preparation of a judgment which might provide some practical guidance on the question of the representation of the person the subject of the proceedings in this and similar cases, that the parties should provide written submissions on the issue of the Court appointing a Relevant Person's Representative as his litigation friend in the context of a challenge to the deprivation of his liberty pursuant to section 21A Mental Capacity Act 2005. Mr McKendrick has provided very clear and comprehensive submissions to which Mr Stringer has assented without demur. The Official Solicitor has indicated in correspondence that he did not feel it was necessary to comment on these submissions, although he was invited to do so by me. I am indebted to Mr McKendrick for his industry and make no secret of the fact that I have drawn heavily on his written work.

Background

6. On 12 October 2011 District Judge Ralton directed that the Official Solicitor, subject to his consent, should be appointed as Albert's litigation friend. The Official Solicitor was served with the papers on that day. There was no confirmation that the Official Solicitor was willing and able to act as Albert's litigation friend as at 4 pm on 1 November 2011.
7. Albert's solicitors therefore sought Ms Wood's permission to apply to the Court to appoint her as his litigation friend. A COP 9 application and witness statement in support were prepared and served.
8. The Official Solicitor responded later in the day to Albert's solicitor stating inter alia:

i) he acts as litigation friend of last resort;

ii) if Ms Wood were willing to act he would decline the Court's invitation to act;

iii) if Ms Wood felt unable to act he would require a written statement explaining why.

9. At the hearing on 2 November 2010 Ms Wood gave evidence to the Court. She explained she was willing to act but required to obtain her manager's approval to continue with the role. She explained she had not been trained to act as a litigation friend but had been trained in the deprivation of liberty scheme and was familiar, and had been trained, in her roles as Independent Mental Capacity Advocate and RPR. She had read the relevant parts of the Deprivation of Liberty Code of Practice ("DOLS Code").
10. Further, she gave evidence that she worked for Central Advocacy as a paid RPR. She explained that she worked across the North-West with Central Advocacy, her employer. She explained that Central Advocacy was in part funded by LCC, but this would not affect her independence acting for those in Albert's position. She explained she was not fully familiar with the court process but would turn to a solicitor for assistance and advice.
11. She explained that she was based locally in the North-West and routinely saw those allocated to her who had been detained, around once per month on average. In Albert's case she had been involved for some time prior to the Court proceedings. She explained she was concerned that Albert had expressed a desire to leave BCH and as such she contacted Maxwell Gillott solicitors to make an application on his behalf pursuant to s21A Mental Capacity Act 2005.
12. As I have stated above I then proceeded to appoint Ms Wood as Albert's litigation friend.

Litigation Friend

13. The subject of Part 17 of the Court of Protection Rules is "Litigation Friend". There is also a Practice Direction relating to the appointment of litigation friends: PD 17A.
14. In these proceedings Albert is 'P' for the purposes of the Court of Protection statutory régime: see paragraph 7 of Schedule A1, Mental Capacity Act 2005 and rule 6 of the Court of Protection Rules.
15. Albert is required to have a litigation friend: see COP rule 141(1) which provides:

Subject to rule 147, P (if a party to proceedings) must have a litigation friend.

(Rule 147 does not apply in this case)

16. The test for the appointment of a litigation friend is laid out in rule 140:

(1) A person may act as a litigation friend on behalf of a person mentioned in paragraph (2) if he -

(a)     can fairly and competently conduct proceedings on behalf of that person; and

(b)     has no interests adverse to those of that person.

(2)  The persons for whom a litigation friend may act are -

(a)     P;

(b)     a child; or

(c)     a protected party.

17. Mr McKendrick submits that additionally any putative litigation friend should also be required to confirm that he will act in P's best interests. This derives from the context of the statutory scheme as a whole. A litigation friend unable to give such confirmation would not be appropriately appointed. I agree.
18. Rule 143 sets out the process for appointing a litigation friend:

(1)     The court may make an order appointing -

(a)     the Official Solicitor; or

(b)     some other person,

to act as a litigation friend.

(2)     The court may act under paragraph (1) -

(a)     either on its own initiative or on the application of any person; but

(b)     only with the consent of the person to be appointed.

(3)     An application for an order under paragraph (1) must be supported by evidence.

(4)     The court may not appoint a litigation friend under this rule unless it is satisfied that the person to be appointed satisfies the conditions specified in rule 140(1).

(5)     The court may at any stage of the proceedings give directions as to the appointment of a litigation friend.

19. In summary, therefore, P is required to have a litigation friend and there is a procedure and a test which the Court must apply before appointing one.

The Relevant Person's Representative (RPR)

20. The RPR is a creation of Schedule A1 of the Mental Capacity Act 2005. The 'relevant person' is the person who is or is to be a detained resident in a hospital or care home for the purpose of being given care or treatment, in circumstances which amount to a deprivation of liberty (see paragraphs 6 and 7 of Schedule A1).
21. Part 10 of Schedule A1 sets out certain information regarding the RPR. I set it out in full (with my emphasis added by underlining):

137 In this Schedule the relevant person's representative is the person appointed as such in accordance with this Part.

138(1) Regulations may make provision about the selection and appointment of representatives.

(2)     In this Part such regulations are referred to as "appointment regulations".

Supervisory body to appoint representative

139(1) The supervisory body must appoint a person to be the relevant person's representative as soon as practicable after a standard authorisation is given.

(2) The supervisory body must appoint a person to be the relevant person's representative if a vacancy arises whilst a standard authorisation is in force.

(3)  Where a vacancy arises, the appointment under sub-paragraph (2) is to be made as soon as practicable after the supervisory body becomes aware of the vacancy.

140(1) The selection of a person for appointment under paragraph 139 must not be made unless it appears to the person making the selection that the prospective representative would, if appointed

(a) maintain contact with the relevant person,

(b)     represent the relevant person in matters relating to or connected with this Schedule, and

(c)     support the relevant person in matters relating to or connected with this Schedule.

141(1) Any appointment of a representative for a relevant person is in addition to, and does not affect, any appointment of a donee or deputy.

(2)   The functions of any representative are in addition to, and do not affect—

(a)     the authority of any donee,

(b)     the powers of any deputy, or

(c)     any powers of the court.

Appointment regulations

142 Appointment regulations may provide that the procedure for appointing a representative may begin at any time after a request for a standard authorisation is made (including a time before the request has been disposed of).

143(1)   Appointment regulations may make provision about who is to select a person for appointment as a representative.

(2)     But regulations under this paragraph may only provide for the following to make a selection—

(a)     the relevant person, if he has capacity in relation to the question of which person should be his representative;

(b)     a donee of a lasting power of attorney granted by the relevant person, if it is within the scope of his authority to select a person;

(c)     a deputy, if it is within the scope of his authority to select a person;

(d)     a best interests assessor;

(e)     the supervisory body.

(3)     Regulations under this paragraph may provide that a selection by the relevant person, a donee or a deputy is subject to approval by a best interests assessor or the supervisory body.

(4)     Regulations under this paragraph may provide that, if more than one selection is necessary in connection with the appointment of a particular representative—

(a)     the same person may make more than one selection;

(b)     different persons may make different selections.

(5)     For the purposes of this paragraph a best interests assessor is a person carrying out a best interests assessment in connection with the standard authorisation in question (including the giving of that authorisation).

144(1)    Appointment regulations may make provision about who may, or may not, be—

(a)     selected for appointment as a representative, or

(b)     appointed as a representative.

(2)     Regulations under this paragraph may relate to any of the following matters—

(a)     a person's age;

(b)     a person's suitability;

(c)     a person's independence;

(d)     a person's willingness;

(e)     a person's qualifications.

145 Appointment regulations may make provision about the formalities of appointing a person as a representative.

146 In a case where a best interests assessor is to select a person to be appointed as a representative, appointment regulations may provide for the variation of the assessor's duties in relation to the assessment which he is carrying out.

Monitoring of representatives

147 Regulations may make provision requiring the managing authority of the relevant hospital or care home to—

(a)     monitor, and

(b)     report to the supervisory body on,

the extent to which a representative is maintaining contact with the relevant person.

Termination

148 Regulations may make provision about the circumstances in which the appointment of a person as the relevant person's representative ends or may be ended.

149 Regulations may make provision about the formalities of ending the appointment of a person as a representative.

Suspension of representative's functions

150(1)  Regulations may make provision about the circumstances in which functions exercisable by, or in relation to, the relevant person's representative (whether under this Schedule or not) may be—

(a)     suspended, and

(b)     if suspended, revived.

(2)     The regulations may make provision about the formalities for giving effect to the suspension or revival of a function.

(3)     The regulations may make provision about the effect of the suspension or revival of a function.

Payment of representative

151 Regulations may make provision for payments to be made to, or in relation to, persons exercising functions as the relevant person's representative.

Regulations under this Part

152 The provisions of this Part which specify provision that may be made in regulations under this Part do not affect the generality of the power to make such regulations.

Effect of appointment of section 39C IMCA

153 Paragraphs 159 and 160 make provision about the exercise of functions by, or towards, the relevant person's representative during periods when –

(a)     no person is appointed as the relevant person's representative, but

(b)     a person is appointed as a section 39C IMCA.

22. It can thus be seen that while Part 10 sets out at some length the mandatory requirement that the supervisory body must appoint a RPR it does not, it might be thought surprisingly, go on to set out the function or role of the RPR.
23. References are made to the RPR throughout Schedule A1 and include inter alia the following:

i) The supervisory body must ensure the RPR is provided with a copy of the statutory assessments for a standard authorisation: para 57(2)(a).

ii) The supervisory body must inform the RPR if the supervisory body is prohibited from giving a standard authorisation: para 58(2)(b).

iii) Any written information regarding the effect of the standard authorisation, the right to apply to the Court of Protection, the right to request a review and the right to have an IMCA appointed to be given to the detained resident must be given to the RPR as soon as possible by the managing authority if the supervisory authority has granted a standard authorisation: paragraph 59(5) and (6).

iv) If a standard authorisation ceases to be in force or is suspended the RPR must be given notice: see para 65(1)(c) and para 93(3)(b).

v) A review of the standard authorisation must be carried out by the supervisory body if requested by the RPR: see para 102(3)(b).

vi) The supervisory body must inform the RPR of the outcome of the review in writing: see para 120(1)(c).

24. The Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) Regulations 2008 ("the Regulations") set forth further obligations in relation to the appointment of RPRs. The Regulations explain how a person can be selected and appointed as a RPR. A RPR can be a family member or a paid representative with satisfactory skills and experience. The RPR may (and in many cases will) be appointed by the supervisory body which will be the local authority which has arranged the placement at the care home.
25. The explanatory notes to the Regulations state:

The role of the representative is to maintain contact with the person and to support and represent them in matters relating to their deprivation of liberty.

This is reinforced by the DOLS Code of Practice which states:

7.1 The supervisory body must appoint a relevant person's representative for every person to whom they give a standard authorisation for deprivation of liberty. It is important that the representative is appointed at the time the authorisation is given or as soon as possible and practical thereafter.

7.2 The role of the relevant person's representative, once appointed, is:

to maintain contact with the relevant person, and

to represent and support the relevant person in all matters relating to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using an organisation's complaints procedure on the person's behalf or making an application to the Court of Protection.

26. Mr McKendrick submits that this is a crucial role in the deprivation of liberty process, providing the relevant person with representation and support that is independent of the commissioners and providers of the services they receive. I agree.
27. The DOLS Code of Practice continues:

7.3 The best interests principle of the Act applies to the relevant person's representative in the same way that it applies to other people acting or making decisions for people who lack capacity

Sections 21A and 50 MCA 2005

28. The application of which I am seised concerns s21A of the Mental Capacity Act 2005 which states:

Powers of court in relation to Schedule A1

(1)     This section applies if either of the following has been given under Schedule A1—

(a)     a standard authorisation;

(b)     an urgent authorisation.

(2)     Where a standard authorisation has been given, the court may determine any question relating to any of the following matters—

(a)     whether the relevant person meets one or more of the qualifying requirements;

(b)     the period during which the standard authorisation is to be in force;

(c)     the purpose for which the standard authorisation is given;

(d)     the conditions subject to which the standard authorisation is given.

(3)     If the court determines any question under subsection (2), the court may make an order—

(a)     varying or terminating the standard authorisation, or

(b)     directing the supervisory body to vary or terminate the standard authorisation.

(4)     Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters—

(a)     whether the urgent authorisation should have been given;

(b)     the period during which the urgent authorisation is to be in force;

(c)     the purpose for which the urgent authorisation is given.

(5)     Where the court determines any question under subsection (4), the court may make an order—

(a)     varying or terminating the urgent authorisation, or

(b)     directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation.

(6)     Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.

(7)     An order under subsection (6) may, in particular, exclude a person from liability.

29. Section 50 provides as follows:

(1)     No permission is required for an application to the court for the exercise of any of its powers under this Act -

(a)     by a person who lacks, or is alleged to lack, capacity,

(b)     if such a person has not reached 18, by anyone with parental responsibility for him,

(c)     by the donor or a donee of a lasting power of attorney to which the application relates,

(d)     by a deputy appointed by the court for a person to whom the application relates, or

(e)     by a person named in an existing order of the court, if the application relates to the order.

(1A)  Nor is permission required for an application to the court under section 21A by the relevant person's representative.

(2) But, subject to Court of Protection Rules and to paragraph 20(2) of Schedule 3 (declarations relating to private international law), permission is required for any other application to the court.

(3)     In deciding whether to grant permission the court must, in particular, have regard to -

(a)     the applicant's connection with the person to whom the application relates,

(b)     the reasons for the application,

(c)     the benefit to the person to whom the application relates of a proposed order or directions, and

(d)     whether the benefit can be achieved in any other way.

(4)     "Parental responsibility" has the same meaning as in the Children Act 1989 .

Conclusions

30. Mr McKendrick asks rhetorically "who can bring a s21A application?" It would appear that anyone can make an application under s21A MCA challenging a standard authorisation but the following persons do not need the court's permission so to do:

i) P;

ii) someone with parental responsibility for a person who lacks capacity or is alleged to lack capacity and is under 18;

iii) a donor or donee of a lasting power of attorney;

iv) a deputy appointed by the court to whom the application relates;

v) a person named in an order of the court, which relates to the application; and

vi) a RPR.

31. Family members do quite often mount applications to challenge the deprivation of their relatives' liberty, but of course they need permission. The test for the grant of permission does not appear unduly high in practice.
32. Perhaps most commonly RPRs make applications on P's behalf and the Court then appoints P as a party to the proceedings. This is what happened here. Sometimes the RPR is assisted by solicitors to make the application and at other times the RPR fills out the necessary DOLS forms and does it himself. A court fee has to be paid unless an exemption applies. At times RPRs have been known to have made applications without the court fee being paid.
33. The statutory scheme permits the RPR to be an applicant to a s21A application and the centrality of their role is underlined by the Guidance from the Legal Services Commission which states at paragraph 28.4 (emphasis added):

Cases before the Court of Protection are generally subject to the usual financial eligibility rules for CLS funding. Neither the Lord Chancellor nor the Commission have any powers to waive eligibility levels or contributions in such cases.

However, applications for Legal Representation in proceedings under s21A Mental Capacity Act 2005 are not subject to a means test where the applicant for funding is either the subject of the authorisation under Sch.A1 of the Act or his/her representative appointed under Pt 10 of that Schedule. Legal Help in relation to such proceedings remains subject to the usual means test. Means-free Legal Representation is not available in other proceedings in the Court of Protection regarding deprivation of liberty or allegations of deprivation of liberty.

34. It is plain that Parliament has intended that the RPR should play a central role in challenges pursuant to s21A MCA. This process permits the Court of Protection to review the relevant person's deprivation of liberty. The Court need not appoint P as a party and require P to have a litigation friend, albeit this may be desirable in some circumstances, as the statutory regime clearly anticipates P sometimes not being made a party (see for example COP rule 73 (4)).
35. Moreover, in many cases where the RPR makes an application, the Court (so I am told by Mr McKendrick) often appears to assume the RPR is doing so only on behalf of the detained person and as such he ceases to be a party. Properly understood the RPR may be a party in his or her own right and it is submitted by Mr McKendrick that the Court should not automatically appoint the detained person as the Applicant and end the role of the RPR (which appears often to take place in practice). I tend to agree.
36. I now turn to the crux of the matter before me. Can and should a RPR act as Litigation Friend?
37. The role of the RPR is to meet with the relevant person and to represent him in matters relating to his deprivation of liberty. As I have shown, the 2005 Act lays down certain specific examples of obligations on supervisory bodies to inform the RPR and the Act permits the RPR to seek reviews of standard authorisations. The Code of Practice (which must be taken into account by the Court if a provision of the Code is relevant to the question arising in the proceedings: see s42(5) MCA 2005) states that the RPR should represent and support the relevant person in 'making an application to the Court of Protection'.
38. I conclude therefore that there is no impediment to a RPR acting as a litigation friend to P in a s21A application provided that:

i) the RPR is not already a party to the proceedings;

ii) the RPR fulfils the COP rule 140 conditions;

iii) the RPR can and is willing to act as litigation friend in P's best interests; and

iv) the procedure as set out in COP rule 143 is complied with.

39. Rule 166 and the Practice Direction 17A permit the Court to make a cost order against a litigation friend, albeit the general rule in welfare proceedings is that there will be no order as to costs (see COP rule 156). It may well be appropriate therefore for a putative litigation friend to be informed of this power before consenting to act.
40. I now turn to the question as to whether the normal or usual litigation friend should be the Official Solicitor. The notes to COP rule 143 of The Court of Protection Practice 2011, Jordans, states at paragraph 656 that:

The Official Solicitor will usually be appointed in respect of P.

41. The rationale for this is to be found at paragraph 7.98 on page 309:

The incapacitated person, if made a party, may also need a litigation friend but this will generally be the Official Solicitor because the persons who might otherwise provide such support are likely to be parties themselves or have an adverse interest. In other words, a person who should really be a party may not hijack the incapacitated person's case.

42. I am told by Mr McKendrick that he understands the Official Solicitor has adopted a policy whereby he will act as litigation person for P when there is no-one else willing and able to act. In relation to s21A MCA applications there may often be (but not always) a paid RPR. Mr McKendrick submits, and I agree, there does not appear to be any good reason, considering the overall statutory scheme, why the Court cannot, on its own initiative, pursuant to rule 143, invite the RPR to be appointed as litigation friend and if he or she consents, to be so appointed. The Court would need to be satisfied that the RPR satisfies the conditions set out in paragraph 38 (a) to (c) above. This would require evidence.
43. Indeed, I agree that there are advantages to a RPR being appointed viz:

i) they will probably have met the detained person;

ii) they provide continuity;

iii) it may be cost effective if having been involved it avoids the duplication of work by a publicly funded litigation friend;

iv) they may often be situated local to the geographical area where the detained person resides;

v) it does not require the detained person to meet yet more people which may be unsettling or confusing.

44. On the other hand, Mr McKendrick correctly identifies potential disadvantages:

i) the detained person and the Court would not have the benefit of the experience of the Official Solicitor's assistance;

ii) unlike appointing the Official Solicitor as P's litigation friend, the Court will require some evidence that the RPR (which could of course be a family member) fulfils the condition of appointment as a litigation friend – this may lead to additional expenditure and court time;

iii) it may lead to a divergence of resources and if the RPR were to be regularly appointed as litigation friend, a paid RPR (as in this case) may have less time and resources to fulfil his RPR role;

iv) any delay to assess the suitability of appointing a RPR as litigation friend might fall foul of the requirement for the Court promptly to review the deprivation of liberty pursuant to Article 5(4) ECHR.

45. I am told that often (but not invariably) District Judges at Archway seek to appoint the Official Solicitor as litigation friend at the initial directions appointment. That happened in this case. Consideration is not always capable of being given at that stage as to whether there is an alternative litigation friend able and willing to act. But the Court should try to determine whether there is a suitable litigation friend, and in many cases (like this one) the RPR can well fulfil that role.
46. Further, there appear in practice to be few cases where the RPR acts as the applicant to s21A applications. Should the applicant be a paid RPR appointed by the supervisory body it may be the Court would want to encourage such RPRs remaining as such, as envisaged by the statutory scheme. If, however, the RPR is a family member, the Court will need to consider whether P's interests are properly represented before the Court. In circumstances where a family member RPR is the applicant, the Court may feel it necessary to make P a respondent and to appoint the Official Solicitor (or another person) as the litigation friend.