B e f o r e :
|(BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR)|
Crown Copyright ©
Introduction and Background
Court of Protection Rules
"P's participation should be secured by the appointment of a representative whose function shall be to provide the court with information as to the matters set out in Section 4(6) of the Act and to discharge such other functions as the court may direct".
"A person may act as an accredited legal representative or representative, for P, if that person can fairly and competently discharge his or her functions on behalf of P".
"A representative, an accredited legal representative or P may, at any time and without giving notice to the other parties, apply to the court for directions relating to the performance, terms of appointment or continuation of the appointment of the representative or accredited legal representative".
"(1) The court may, either of its own initiative or on the application of any person
(a) direct that a person may not act as a representative or accredited legal representative;
(b) bring to an end a representative's or accredited legal representative's appointment;
(c) appoint a new representative or accredited legal representative in place of an existing one; or
(d) vary the terms of a representative's or accredited legal representative's appointment".
(2) If an application for an order under paragraph (1) is based on the conduct of the representative or accredited legal representative, it must be supported by evidence".
"a) can fairly and competently conduct proceedings on behalf of that person; and
(b) has no interests adverse to those of that person".
Submissions on behalf of the Official Solicitor
The CCG's Position
"What you need to do is to consider and decide from that perspective whether P's package of care and support is the least restrictive available option that best promotes P's best interests and then inform the court what you have decided and what P's wishes and feelings about the package of care and support are.
In short, the court is asking you, as someone who knows the position on the ground, to consider whether from the perspective of P's best interests you agree or do not agree that the court should authorise P's package of care and support. This will involve you weighing the pros and cons of that package of care and support, comparing it with other available options and (if appropriate) proposing changes to the applicant authority. For example, if you consider that some of the restrictions it puts in place are unnecessary or inappropriate and should be changed, you should raise this with the applicant authority and, if they do not agree with what you propose, the court".
"It is also inevitable that such family members or friends will have an interest in the outcome of the proceedings because it affects them as well as P. Their role may have continued over the life of P, or may have started when P became less capable of looking after his or her affairs and continued after P lost relevant capacity. In my view, the fact such persons have performed that role, and in doing so have formed firm views, as to where P's best interests lie, and to voice those views, does not mean that they cannot meet the criteria in Rule 140(1) or that they are disqualified from acting as P's litigation friend".
(a) Whether or not a family member or friend who is responsible in part for implementing restrictive care arrangements is appropriate to be representative or litigation friend is fact and case specific.
(b) The court will have close regard to the relationship between the family member and P,and
(c) The conduct, if any, of the family member and any available evidence that he or she has acted otherwise than in accordance with Rule 140(1) or Rule 147.
(d) That the court must consider the nature of the restrictive care package and the role that the family member would play in such regime.
(i) elicit P's wishes and feelings and making them and the matters mentioned in Section 4(6) of the MCA known to the court without causing P any or any unnecessary distress;
(ii) 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; and
(iii) keep the implementation of the care package under review and raising points relating to it and changes in P's behaviour or health then such appointment can be made.
All of these factors go to the essence of P's Article 5 rights and provided the court is satisfied they can and are being adequately protected such role can be undertaken by the friend or family member.
Dated this 20 day of September 2017
P G BELLAMY .
DISTRICT JUDGE BELLAMY