Accredited Legal RepresentativesAccredited legal representatives:definitionAccredited legal representativesAccredited legal representatives:definitionAccredited legal representativesAccredited legal representatives:appointmentAccredited legal representativesAccredited legal representatives:appointmentAccredited legal representativesAccredited legal representatives:appointmentAccredited legal representativesAccredited legal representatives:appointmentAccredited legal representativesAccredited legal representatives:appointmentAccredited legal representativesAccredited legal representativesAccredited legal representatives:requirements for appointmentAccredited legal representativesAccredited legal representatives:appointmentAccredited legal representativesAccredited legal representatives:dutiesAccredited legal representativesAccredited legal representatives:dutiesAccredited legal representativesAccredited legal representatives:dutiesAccredited legal representativesAccredited legal representatives:dutiesAccredited legal representativesAccredited legal representatives:dutiesAccredited legal representativesAccredited legal representatives:dutiesAccredited legal representativesAccredited legal representatives:dutiesAccredited legal representativesAccredited legal representatives:good practice guideAccredited legal representatives
Definition
11.84An ALR is defined in COPR r6
1COPR Pr2.1 where the Case Management Pilot applies. as ‘a legal representative authorised pursuant to a scheme approved by the President to represent persons meeting the definition of P in this rule in proceedings before the Court’. A legal representative is also defined in COPR r6/ COPR r2.1 as one of a number of categories of legally qualified individuals who has been instructed to act for a party in relation to any application.
2The reference to ‘being instructed to act’ is not strictly accurate in the context of ALRs, and it is likely that this will be amended in due course to ‘being appointed for’ or ‘being appointed on behalf of.’11.85At the time of writing no scheme has yet been approved, and no ALRs can therefore be appointed. However, the Law Society have taken steps to establish an accreditation process which will – if approved by the President – give rise to the potential for ALRs to be appointed during the course of 2017.
When will an ALR be appointed?
11.86Pilot PD 1A/PD 2A gives the judge ‘pointers’ when considering which of the options in COPR Pr1.2/COPR r3A to select. In light of the novelty of the role, paragraphs 9–12 are set out below.
9. 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 (eg an urgent order relating to residence).
10. 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).
11. When P lacks capacity to conduct the proceedings and an order that he is to be a party is made factors relevant to the choice between appointing a litigation friend and an accredited legal representative to represent him as a party will include –
•whether there will be a need for expert or other evidence to be obtained and filed, or other material gathered, on P’s behalf;
•the nature and complexity of the case;
•the likely range of issues.
12. In other cases their nature and complexity, the issues raised or likely to be raised in them and the stage they have reached could mean that the assistance of an accredited legal representative is not required or is inappropriate and that P’s participation is best secured and the court will be properly informed by the appointment of a representative under Rule 3A(2)(c) (who could be a friend, an IMCA, an advocate appointed under the Care Act 2014, a family member or anyone with relevant knowledge) or by directions being made under [COPR Pr1.2(2)(d) or (e)/COPR r3A(2)(d) or (e)].
11.87Whilst COPR Pr1.2(2)(b)/COPR r3A.2(b) envisages that an ALR can be appointed to represent P in the proceedings without P being joined as a party, we anticipate that this form of appointment will be relatively rare; rather, we anticipate that ALRs will be more usually appointed where the court considers that P’s participation requires them to have party status but P does not have the capacity to conduct the proceedings. At that point, and as set out at para 11.10 above, the court must either appoint an ALR or a litigation friend.
3COPR Pr1.2(4)/COPR r3A(4).11.88It is also clear that the court does not envisage that ALRs will lead to litigation friends becoming redundant. Paragraph 11 explains the factors which the court would consider when deciding between an ALR and a litigation friend:
•whether there will be a need for expert evidence or other evidence to be obtained or filed, or other material gathered, on behalf;
•the nature and complexity of the case and
•the likely range of issues.
11.89This suggests that the court is more likely to appoint an ALR in a case where the issues are relatively defined. Paragraph 10 suggests that there may be cases where an ALR is appointed in the early stages of the case but that subsequently a litigation friend is needed because – for example – the case is more complex than first appeared. See further paras 11.97–11.100 below.
11.90Given the novelty of the role, there is at the time of writing limited case-law to assist in terms of their potential duties and role, but as the scheme for ALRs is rolled out it is likely that their role will be subject of judicial comment and/or guidance. In
Re PD Baker J held that in an application for recognition and enforcement of a foreign order (see further chapter 26), P does not always need to be a party but could participate through an ALR who could ‘facilitate a quick but focussed analysis of the particular requirements of Schedule 3. It is therefore to be hoped that the scheme for accreditation is swiftly established.’
4[2015] EWCOP 48, [2015] COPLR 544 In
Re JM5[2016] EWCOP 15, [2016] 4 WLR 64, at para 73. Charles J described ALRs as a possible solution for the representation of P in uncontentious welfare cases where there is an application to deprive P of his or her liberty in a setting where DOLS cannot be used.
11.91It is hoped that the availability of ALRs may reduce the pressure on the Official Solicitor’s office, especially in urgent cases. It is not always possible to identify other paid litigation friends (eg IMCAs, RPRs) because of capacity and funding issues. There was vivid evidence of the pressure on advocacy services from some of the statutory bodies in
Re JM.
6At para 96. It is suggested that ALRs may be of particular benefit is in section 21A appeals, where P will be entitled to non-means-tested legal aid (see chapters 6 and 21).
Requirements for appointment as an ALR
11.92COPR r147 provides that a COPR Pr1.2/COPR r3A representative (including an ALR) must be able to discharge his or her functions in relation to P ‘fairly and competently.’ COPR r148 requires the consent of the COPR Pr1.2/COPR r3A representative before he or she is appointed.
Appointment
11.93COPR r148 provides that the court may appoint an ALR at any time, either on its own initiative or on the application of any person,
7COPR r148(2). provided it is satisfied that the person to be appointed satisfies the requirements of COPR r147 (see para 11.34 above). The same requirements apply as regards the appointment of ALRs as they do COPR Pr1.2/COPR r3A representatives (see paragraph 11.74 above).
Duties
11.94An ALR has the following responsibilities:
•A duty to the court to comply with COPR Pr1.2/COPR r3A and r147, and to help the court to further the overriding objective;
8COPR r4/COPR Pr1.4. •Professional responsibilities to the client and others in line with the relevant regulatory framework applicable to the relevant category of legal representative;
9For instance the SRA Code of Conduct for solicitors or the BSB Code of Conduct for barristers. and
•(In legal aid cases) a duty to the LAA to comply with the contracting arrangements (see further chapter 6).
11.95The ALR’s role has some elements in common with that of so-called Rule 11(7)
10Ie representatives appointed (in England) under rule 11(7)(b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules SI 2008 SI No 2699. The equivalent rule for the Mental Health Review Tribunal for Wales is rule 13(5)(b) of the Mental Health Review Tribunal for Wales Rules SI 2008 No 2705. representative in English Mental Health Tribunals (MHTs) where again the representative acts for a client without capacity to appoint them (and who is also likely to lack capacity to conduct their appeal before the Tribunal) without a litigation friend or other individual appointed to give instructions to the representatives.
11.96There will be some cases where the guidance issued to Rule 11(7) representatives will be useful to ALRs,
11See in particular the Law Society’s Practice Note: Representation before Mental Health Tribunals, available at www.lawsociety.org.uk/support-services/advice/practice-notes/representation-before-mental-health-tribunals/. but care should be taken not to equate the two roles. MHTs tend to be recurring events which will almost always involve an oral hearing and which essentially consider a snapshot in which the MHT applies the statutory criteria set out in MHA 1983 ss72, 73, 74 and 75.
12For more detail, see Johnston, Miles and Royston, Mental Health Tribunals Handbook (Legal Action Group, 2015). Cases in the Court of Protection will cover a more extensive range of issues in which it may make one-off decisions with life-changing consequences. If a patient detained in hospital loses his or her application to the MHT, he or she can apply again. If P is moved away from his or her home by the COP, which also authorises the sale of the home, this decision cannot be easily revisited.
11.97ALRs are likely to face the dilemmas regularly faced by those acting for litigation friends and considered at paras 11.45 onwards. The following are familiar scenarios:
•P desperately wants to leave the care home but there is strong evidence this will put him or her at life-threatening risk;
•P wants to continue a relationship with a person who is abusive and manipulative, and takes advantage of the client’s vulnerability;
•P wants to refuse treatment but this could result in death.
11.98In the absence of guidance from the courts we note that Pilot PD 1A/PD 2A recommends a cautious approach to the use of ALRs and concludes with the following paragraph:
A Rule 3A representative must be able to discharge his or her functions fairly and competently It is possible that a Rule 3A representative may be in, or find himself or herself in, a personal or professional position in which he or she cannot properly represent P, provide the court with information about P or carry out other functions directed by the court. In such a case, Section 2 of Part 17 allows for the court to vary the terms of the appointment with a view to resolving the difficulty, or to discharge the appointment altogether (in which case the court will consider afresh whether it should make one or more of the directions in paragraph (2) of [COPR Pr1.2/COPR r3A].
11.99This suggests in turn that ALRs (or COPR Pr1.2/COPR r3A representatives) should not attempt to ‘soldier on’ if they find themselves in difficulty discharging the various duties they owe. We suggest that the circumstances in which the ALR should consider approaching the court will include cases where there is a divergence between the ALR’s view of P’s best interests and P’s wishes, and where the ALR is satisfied that P lacks capacity to make the decision.
11.100ALRs may therefore wish to apply a relatively low threshold for approaching the court under Part 17. The court will then have a range of Rule 3A options open to it, including the appointment of a litigation friend who could then instruct the former ALR in the usual way. In their forthcoming article referred to at footnote 86 above, Alex Ruck Keene and others suggest the appointment of an ‘amicus curiae’ in such cases, allowing the ALR to argue P’s wishes without reservation.
Directions and variation or termination of appointment
11.101The relevant provisions apply in relation to ALRs in this regard as they do in relation to COPR Pr1.2/COPR r3A representatives: see para 11.82 above.
Good practice guide
Accredited legal representatives:variation or termination of appointment Accredited legal representatives:directions Accredited legal representatives
11.102Although primarily directed to legal representatives acting for P after appointment as ALR, the following suggestions may also be of assistance by analogy for legal representatives acting for P in the following cases:
•when instructed by the Official Solicitor;
•when instructed by another litigation friend;
•(In rare cases) instructed by P directly where P has litigation capacity.
•Accredited legal representatives:good practice guide Accredited legal representatives
11.103The appointment as an ALR is an appointment of the individual representative and not the representative’s organisation. In our view this entails the individual who is appointed carrying out attendances on P personally other than in circumstances where this is simply impracticable. We would suggest that this is good practice in any event.
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11.104Key to the task of representing P is effective communication with P. In some cases the representative may know P already from other proceedings (most commonly from tribunal proceedings). In the majority of cases the representative will receive a set of papers about an individual and his or her family whom the representative knows nothing about. In the case of an appeal under MCA 2005 s21A these should include the current authorisation and assessments for the purpose of the Deprivation of Liberty Safeguards (‘DOLS’) authorisation. These will provide the representative with the factual background; and with some information about P’s diagnosis and presentation. DOLS assessments may provide valuable information about P’s communication and may provide pointers as to how this can be maximised.
Accredited legal representatives:good practice guide Accredited legal representativesCodes of Practice:Deprivation of Liberty Safeguards (DOLS) Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (2008)
11.105In addition to diarising key dates, case management tools such as chronologies can be vital time-savers allowing the representative to keep track of what is likely to be fast-moving litigation. As we have seen, the courts are likely to turn to ALRs in urgent cases, perhaps where an interim decision on residence needs to be made quickly which will have a significant bearing on the remainder of the case.
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11.106It is hoped that orders appointing ALRs will also contain provision for disclosure of records to the ALR from social service, relevant health bodies and placements, and that such orders will make it explicit that other professionals involved – including advocates or paid RPRs – have permission to speak to the ALR, so as to minimise delay in the ALR familiarising himself or herself with the case and with P.
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11.107Family members will in many cases have a wealth of information about P. Such family members may or may not be parties to the case. If they are represented then communication will take place through their solicitors but at the start of all cases the representative should ensure that family members are aware of the identity and the role of the ALR or litigation friend and that they have relevant contact details. It is important to be aware of the inevitable sensitivity that some family members may feel when a stranger is appointed to represent their parent, child or spouse.
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11.108When preparing to meet P it is helpful to have some information about P’s condition and how this affects P’s communication. The Advocate’s Gateway is an invaluable free resource which provides toolkits giving insight into conditions such as autism or learning disability and offer practical guidance about tailoring questions to enhance effective communication by P.
13www.theadvocatesgateway.org/toolkits. Charities or NGOs campaigning on behalf of those with specific conditions may also have useful factsheets on their websites. See appendix G for contact details of relevant organisations. The Law Society has provided guidance on providing legal services to vulnerable clients (‘the Vulnerable Clients Practice Note’) which may be useful.
14www.lawsociety.org.uk/support-services/advice/practice-notes/meeting-the-needs-of-vulnerable-clients-july-2015/. See also paras 15.34–15.44 in relation to how P may be enabled to give evidence or information to the court.
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11.109If P is in a hospital or care setting it may be useful to find out something about it before visiting P. The placement’s most recent Care Quality Commission report will be a good starting point.
15www.cqc.org/.Accredited legal representatives:good practice guide Accredited legal representatives
11.110If at all possible visits to P should be planned with P’s schedule in mind; although in urgent cases this may not be achievable. If P has an advocate, IMCA or RPR, consider whether the visit should take place with them. It is essential to take a careful note of visits to P. These should include as far as possible the representative’s observations of the setting where P resides: for example the physical structure, the accessibility for P; availability of open air space; evidence of activities. It is helpful to note down observations of P: where is P at the time of the visit; is it possible to see how P has spent the time just before the visit; how does P appear; what interaction between P and staff or residents can be observed? P may prefer someone to be with him or her during the visit and this should be respected.
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11.111When meeting P for the first time, even in cases where interim declarations as to P’s capacity have been made, the representative should retain an open mind as to P’s capacity to make the relevant decisions and to conduct the proceedings. See paras 11.11–11.12 above, as well as the Vulnerable Clients Practice Note.
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11.112It is good practice to document the conversation with P fully and directly rather than using reported speech. This is time consuming but plays an important part in ensuring P’s voice really is heard, in P’s own words. Attendance notes of the visit should be timed and dated and exhibited to a COP24. Members of staff at placements may also provide helpful information but must always be told in advance of any conversation that they are not speaking to the representative and that what they say will be made available to the court and the parties.
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11.113An ALR may have been given a specific remit on appointment by the court but in all cases the representative will wish to explore P’s wishes as to the issues under consideration by the court and how P wishes to participate in the proceedings. P may wish to attend court or may wish the judge to visit. Consideration can then be given to how this can be facilitated. Judicial visits will need to be arranged with the court and will usually require P’s representative to take a note to be filed and served. In some cases the use of an intermediary may be warranted: see para 15.73 for further details.
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11.114In most cases it will be important to keep P informed of the progress of the case. Where possible there should be continuity in who visits P. This is likely to be preferable to P and facilitates an accurate picture of P’s views, wishes and in some cases progress being relayed to the court.