COPR Pr1.2/COPR r3A representativesCOPR Pr/ COPRA r3A representatives—:appointmentCOPR Pr/ COPRA r3A representatives—COPR Pr/ COPRA r3A representatives—:appointmentCOPR Pr/ COPRA r3A representatives—:dutiesCOPR Pr/ COPRA r3A representatives—:dutiesCOPR Pr/ COPRA r3A representatives—:dutiesCOPR Pr/ COPRA r3A representatives—:dutiesCOPR Pr/ COPRA r3A representatives—:dutiesCOPR Pr/ COPRA r3A representatives—:variation or termination of appointmentCOPR Pr/ COPRA r3A representatives—:directionsCOPR Pr/ COPRA r3A representatives—:variation or termination of appointmentCOPR Pr/ COPRA r3A representatives—:directionsCOPR Pr/ COPRA r3A representatives—:fundingCOPR Pr/ COPRA r3A representatives—
Appointment
11.74As set out at para 11.7 above, one of the options that the court can adopt to ensure the participation of P is to appoint a representative for them ‘to provide the court with information as to the matters set out in section 4(6) of the Act [ie P’s wishes, feelings, beliefs and values] and to discharge such other functions as the court may direct’.
1COPR Pr1.2(2)(c) / COPR r3A(2)(c). It would, in principle, be possible to appoint such a representative even where P is joined as a party to proceedings, but in practice it is likely that a representative will only be appointed where the court has decided that P’s participation can be secured other than by joining them. These representatives are commonly known as ‘Rule 3A representatives’, the term used in this section, although they are in fact Rule 1.2 representatives for purposes of the Case Management Pilot.
11.75The court may appoint a COPR Pr1.2/ COPR r3A representative of its own motion or on the application of any person, but only with the consent of the representative.
2COPR r148(2); PD 2A para 8. Such an application must be made using form COP9
3PD 17B (3). and must be served on all parties, as well as on any current representative or ALR and the proposed representative.
4COPR r148C. The representative must be able to discharge his or her functions
5See COPR Pr1.2(2)(c) / COPR r3A(2)(c) and the paragraph above. ‘fairly and competently.’
6COPR r147.Duties
11.76Pilot PD 1A/PD 2A envisages a COPR Pr1.2/COPR r3A representative as being someone with knowledge of P, such as a family member or friend, or an IMCA or Care Act advocate.
7Pilot PD1A/PD 2A para 12. Whilst, in theory, a legally qualified person could be appointed, it is suggested that they would not, if appointed as such a representative, be discharging any functions as a lawyer. If the court wished to appoint the person to act as a lawyer, then it would be required to do so under the provisions relating to ALRs, addressed further below.
11.77In
Re NRA and others,
8[2015] EWCOP 59, [2015] COPLR 690, para 234 Charles J approved the appointment of family members or friends of P, who have ‘fought P’s corner’ over the years, in uncontentious cases where a statutory body applies to the court under MCA 2005 ss15 and 16 for authority to deprive P of his or her liberty (known as ‘
Re X cases’) (see further chapter 21). As he indicated, such appointments provide a means of:
(i) eliciting P’s wishes and feelings and making them and the matters mentioned in s 4(6) of the MCA known to the court, without causing P any or any unnecessary distress, and
(ii) critically examining 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.
9Re NRA, para 164.11.78In the context of
Re X cases, Charles J drew an express analogy between the role of a COPR Pr1.2/COPR r3A representative and the role of the Relevant Person’s Representative under Schedule A1.
10Re NRA, para 111. In other words the role requires a continuing commitment to the representation of P’s wishes and feelings and the scrutiny of P’s circumstances. In
Re VE,
11[2016] EWCOP 16. Charles J set out an extensive list of functions that would be expected of the representative including:
•checking the court documentation for accuracy;
•discussing points of difference with the statutory body making the application;
•discussing the package of care and support and the application to the Court with P in so far as P is able to understand them; and ascertaining P’s views if this can be done without unnecessary distress including asking P what he thinks about the package of care and support
•deciding whether to support the application;
•considering how P should participate in the application; and
•preparing a statement to set out all of the above matters.
11.79However, and especially outside the context of cases involving the authorisation of deprivation of liberty, the appointment of a representative will not always require the long term involvement envisaged in
Re NRA and
Re JM.
12[2016] EWCOP 15, [2016] 4 WLR 64. Such an appointment could be limited to a single report to the judge in, for example, a property and affairs case where the judge does not wish to join P to save P the legal costs but wants to ensure that they have heard a neutral voice relaying P’s views to the court.
11.80The COPR do not prohibit a COPR Pr1.2/COPR r3A representative seeking to instruct a lawyer to assist them in the discharge of their duties. As discussed in chapter 6, public funding in the form of Legal Help is in principle available to assist a COPR Pr1.2/COPR r3A representative who is, themselves, financially eligible for such assistance, and a family member wishing to understand their duties may well wish to enlist legal advice by way of Legal Help. It would also be possible – by analogy with the position in relation to litigation friends (see para 11.68) for a person to decline to consent to be a COPR Pr1.2/COPR r3A representative without being given the necessary funds to instruct a lawyer. However, we suggest that a COPR Pr1.2/COPR r3A representative who finds that are needing recourse to more than outline advice as to the nature of the duties (and, for instance, how to draft a witness statement) should consider very carefully whether it is in fact appropriate for them to continue in their role, or whether they should not take the matter back to court for further directions under the provisions discussed in the following paragraph.
Directions and variation or termination of appointment
11.81COPR r148A allows any representative appointed under COPR Pr1.2/COPR r3A to apply to the court for directions at any time, and does not require notice to be given to the parties. The directions sought may concern the ‘performance, terms of appointment, or continuation of the appointment.’ An application by the representative must be made on form COP9.
13PD 17B para 2. PD Pilot 1A/PD 2A recognises the possibility that representatives may find themselves in either a personal or professional position where they cannot properly represent P, or provide the court with information about P or carry out functions directed by the court.
14Para 13.11.82Other persons may also apply for the appointment of a representative to be brought to an end or varied; and may also apply for orders that a person does not act as a COPR Pr1.2/COPR r3A representative, or for an order that the representative is replaced.
15COPR r148B(1). If any such application is based on the conduct of the representative then this must be supported by evidence.
16COPR r148B(2). The court can also make any such order on its own initiative.
17COPR r148B (2). The court must bring the appointment of a representative to an end if P has capacity to appoint a representative and does not wish the appointment to continue.
18COPR 148B (5). In YA v CNWL [2015] UKUT 37 (AAC), Charles J held (at para 8) that to have capacity to appoint a representative for the purpose of an application to the Mental Health Tribunal required an appreciation of the patient’s inability to conduct the proceedings unaided. It is suggested that this test should be applied for the purpose of COPR 148B(5).Funding
11.83Many COPR Pr1.2/COPR r3A representatives will be family members who would be expected to act as a representative without recompense. However, as noted above, it is also entirely possible for an IMCA or another statutory advocate to act as such a representative. Charles J confirmed in
Re JM and others19[2016] EWCOP 15, [2016] 4 WLR 64. (in the context of
Re X applications) that local authorities are under no statutory duty, and cannot be compelled, to fund advocates to act as COPR Pr1.2/COPR r3A representatives. By analogy with a litigation friend (see paras 11.40–11.43 above), we suggest that a statutory advocate can decline to consent to act as a COPR Pr1.2/COPR r3A representative absent confirmation that they will be recompensed for their time, or withdraw their consent if it suitable funding is no longer available.