Court of Protection reflects on the role of a Rule 1.2 Representative

Newcastle City Council -v- PQ (By her Litigation Friend, the Official Solicitor) & Ors [2024] EWCOP 41 (T3)

Representation of P during review period of a Court authorised deprivation of liberty (‘DOL’) -

The Court of Protection has recently considered the necessity and importance of the protected party having independent representation throughout the Deprivation of Liberty (‘DOL’) review period when there are no longer active legal proceedings. This case was heard at Tier 3 level by Mr Justice Poole.

The Background Facts

The case related to PQ, a 23-year-old woman who suffers from a Learning Disability which makes her vulnerable to sexual exploitation. The Local Authority applied to the Court of Protection in 2018 due to concerns about PQ’s contact with her then boyfriend. It is documented that this is a complex case during which PQ has moved placements and has had a number of relationships.

In early 2024, the Court was able to make final declarations (pursuant to S.15 and S.16 of the Mental Capacity Act 2005 (‘the MCA’)) that PQ lacks capacity to make decisions about her:

• care and support;

• residence;

• use of the internet and social media; and

• contact with people she has met online.

The Court also declared that it was in PQ’s best interests to reside at a certain placement, subject to care and support which amounted to a deprivation of liberty. The placement to which PQ resides is in the community, thus the deprivation of liberty could not be authorised under the Deprivation of Liberty Safeguards (DoLS) and instead required court authorisation.

Whilst the case was being heard at Tier 2 level, there was a concern in respect of how PQ would be independently represented during period between the final order being made and the planned review (‘the review period’). HHJ Smith commented, ‘circumstances may change requiring reconsideration of PQ’s capacity and/or the necessity and proportionality of the restrictions amounting to a deprivation of her liberty, and whether they remain in her best interests’

Furthermore, HHJ Smith further stated, ‘In the present case there is no family member willing and able to act as a rule 1.2 representative for PQ and the Local Authority will not fund a professional representative. It is not clear that the Legal Aid Agency (“LAA”) will continue to fund the Official Solicitor to act as PQ’s Litigation Friend or, alternatively, an Accredited Legal Representative (“ALR”). Without that funding the Official Solicitor or an ALR will not have the necessary security for their costs to allow them to act for PQ. Hence, the central questions for the Court are:

1. Whether PQ’s continued participation during the review period requires her to have some form of representation, whether by a Litigation Friend, an ALR, or a r1.2 representative, in order for there to be compliance with ECHR Art 5.

2. If so, what form of participation should the court require given the options available; and;

3. If the LAA refused to fund PQ’s representation during the review period, whether by a Litigation Friend or an ALR, what steps should the Court then take?’

Decision

The case was then allocated to Tier 3 level, during which the questions posed by HHJ Smith in her judgment, were dealt with by Mr Justice Poole. He addressed each as follows:

1. Whether PQ’s continued participation during the review period requires her to have some form of representation, whether by a Litigation Friend, an ALR, or a r1.2 representative, in order for there to be compliance with ECHR Art 5 

   “When the Court of Protection makes “final” best interests orders in relation to residence and care arrangements in the community which will involve P being deprived of their liberty, it must provide for a review period of no longer than 12 months…. When the Court orders a review then the proceedings are not brought to an end. The proceedings are dormant for the review period but they remain ongoing… The dormant proceedings may be revived during the review period if there is a need to bring to the Court’s attention a significant change in circumstances. The domestic authorities cited above emphasise the need for changes in P’s circumstances or capacity to be swiftly reviewed and, if necessary, brought to the Court’s attention…” [38]
    

2. If so, what form of participation should the court require given the options available

   “When making a final order and/or entering a review period there is a need for the Court to consider directions for the participation of P in the ongoing proceedings and in relation to decision-making that affects them. When P has been a party during proceedings to determine their capacity or best interests, it does not necessarily follow that they must remain a party. It is now established (NRA and Re JM) that compliance with Art 5 does not require P to be a party to the proceedings. P may be discharged as a party and therefore their Litigation Friend may properly be discharged. However, whilst it is not necessary for P to retain party status, that is one of the options to secure their participation that the Court should consider. COP Rules 2017 r1.2 requires the Court to consider whether it should make one or more directions for the participation of P, including making P a party, appointing an ALR, or appointing a representative. In my judgement, the making of final orders marks a significant change in the proceedings and the decisions that have to be made affecting P, and so the participation directions ought to be reviewed and should be tailored to the new circumstances.” [39]

   Perhaps the most fascinating part of Mr Justice Poole’s judgment is in respect of question 3, the issue of funding PQ’s continued representation during the review period.
    

3. If the LAA refused to fund PQ’s representation during the review period, whether by a Litigation Friend or an ALR, what steps should the Court then take?

   “I do have to contemplate the possibility that the LAA might withdraw funding for PQ’s representation following the making of “final” orders and declarations. I also understand that, in any event, non-means tested legal aid is not available and so there will remain a possibility that funding could be withdrawn on the grounds of PQ’s means. The Official Solicitor requires security for costs as one of the criteria for her appointment. It is possible therefore that at some point during the review period, the Official Solicitor would have to cease to act.

   Similarly, public funding would be required for an ALR. In principle, an ALR may be appointed whether P continues as a party or is discharged as a party. The appointment of an ALR does not automatically bring funding with it…

   I trust that the LAA will reflect on the need for such services to be provided to secure PQ’s participation and the state’s compliance with Art 5. These functions are important and they are connected with ongoing proceedings. There is no alternative form of representation available. There may be a need for future oral hearings but that cannot be known in advance. The very purpose of representation would be to ensure that the need for an oral hearing during the review period was swiftly identified and appropriate applications to Court were made…

   What happens if the LAA withdraws funding of a solicitor instructed by the Official Solicitor and will not fund an ALR? The Court will have to cross that bridge as and when it has to, but I would hope and expect that the Local Authority would then approve funding for a professional r1.2 representative because otherwise PQ’s continued detention by the Local Authority would, on my findings, be likely to contravene Art 5(4) of the ECHR.” [64-68]

In considering the possibilities that may proceed following his judgment (as above), Mr Justice Poole directed that, in the event of a decision by the LAA to refuse or to withdraw funding for PQ’s representation by a solicitor instructed by the Official Solicitor and/or an ALR, the matter be re-listed to consider PQ’s participation.

Mr Justice Poole also carefully considered whether PQ’s participation can be satisfactorily achieved by relying entirely on the Local Authority to monitor and review the care arrangements and PQ’s deprivation of liberty, however, he concluded that “there would be no independent oversight during the review period” and that “access to the court should not depend on the goodwill of the detaining authority”. [50]

Comment

It is important to note that that the Court of Protection does not have the requisite jurisdiction to compel a public body to commission a service, be that the Legal Aid Agency, a local authority or an integrated care board (‘ICB’).  Whilst there is no legal framework in respect of who should commission a Rule 1.2 representative, it is often the case that the body responsible for the commissioning of the care package will agree to fund the Rule 1.2 representative to avoid a situation where P has no representation.

It will be interesting to see how the case develops in the event that the local authority continues to refuse to fund the Rule 1.2 representative and the Legal Aid Agency refuses to approve funding. It would be unusual for the court to keep proceedings active, simply to enable the protected party to benefit from legal aid funding, however, there is the possibility that there may not be an alternative option to comply with P’s Article 5 rights.

The effect of the decision in this case will be far-reaching and may have a significant impact on how the court addresses the issue of a protected party’s independent representation following the drawing of a final order.