Support network: litigation friends

Ordinarily, if there is a dispute that requires litigation, people from all walks of life are able to provide solicitors with legal instructions. That is not the case, however, when a person lacks the mental capacity to do so: when they simply cannot understand, fully, what the litigation would involve.

In such circumstances, the person to whom the litigation relates will require the assistance of a litigation friend; someone who is responsible for the conduct and cost of the legal proceedings instituted on their behalf. In the terminology of the rules, such a protected party is known as ‘P’ (Civil Procedure Rules (CPR21) 2007).

Talking point

The role of a litigation friend is becoming more of a talking point in legal and non-legal circles due to the increased volume of litigation in the one court where, invariably, at least one litigant lacks the requisite capacity: the Court of Protection.

In the five years since the introduction of the Mental Capacity Act 2005 (MCA), there has been a surge in incapacitated people being the subject of legal proceedings. In each case, therefore, there must be at least one litigation friend, which leads to a number of inevitable questions. Who can it be? Who should it be? What are the risks? What are the benefits?

The common assumption in ?Court of Protection cases is that the Official Solicitor is the first port of ?call when appointing a litigation friend, due to the (often automatic) direction issued by the Court of Protection when the application is considered initially on the papers.

However, it is important to note that, in all Court of Protection cases, the Official Solicitor is the litigation friend of ‘last resort’ and will act only if there is no other ‘suitable person’ that is ‘able or willing’ to act (‘Court of Protection: acceptance of appointment of litigation friend’, Official Solicitor, ?21 February 2012).

The ‘suitable person’ could be one of P’s family members and, indeed, that should be the starting point. The Deprivation of Liberty Safeguards (DoLS) scheme envisages a close friend or a family member being closely involved. However, more often than not, this role is too difficult, given the sensitive and complex issues at the root of most DoLS, and indeed welfare cases, in the Court of Protection.

So, if it is not going to be the Official Solicitor or a family member, then who else can it be?

The MCA ensured that vulnerable people in Court of Protection proceedings are protected in circumstances where they cannot use the Official Solicitor and do not have a family member or friend to consult. Alternatives can be found in one of the ‘statutory creations’ of the MCA.

There are two main options: an independent mental capacity advocate (IMCA) or a relevant person’s representative (RPR).

An IMCA is appointed following a referral to the Independent Mental Capacity Advocate service by a local authority or NHS professionals.

The Department of Health (‘Making decisions: the independent mental capacity advocate service,’ Department of Health, 2007) has provided guidelines which summarise the role: “An IMCA safeguards the rights of people who are facing a decision about a long-term move or about serious medical treatment, lack capacity to make a specified decision at the time it needs to be made, have nobody else who is willing to and able to represent them, or be consulted in the process of working out their best interests other than paid staff.”

An RPR is appointed to support a person who is being deprived of their liberty under the MCA DoLS. The Department of Health summarises the role of the RPR as: “To maintain contact with the person being deprived of their liberty, to represent and support that person in all matters relating to the MCA DoLS, including, if appropriate, requesting a review, using an organisation’s complaints procedure on the person’s behalf, or making an application to the Court of Protection, and to provide support that is independent of the relevant person’s commissioners and service providers.”

There are other statutory characters (deputies and attorneys), but they do not tend to be suitable, largely because the particular remit of deputies is often in relation to financial affairs.

Key trigger

A litigation friend can be appointed either by completing a certificate of suitability (essentially self certifying themselves), or by appointment of ?the court.

More recently, given the increasing pressures on the Official Solicitor, the judiciary has issued directions at the initial hearing to ask the IMCA and RPR whether they would be suitable, willing and able, to take on the role.

The same can be said for the ?Official Solicitor where, in cases of emergency, the Official Solicitor makes contact with P’s legal representative to make similar enquiries.

The litigation friend must fairly and competently conduct the proceedings on behalf of P and they must have no interest adverse to those of the protected party. Therefore, they must be in a position to assess the ‘wishes and feelings’ (as per the ‘best interests’ principle) of the relevant person.

The role of the litigation friend is important in all court proceedings, however, it is particularly important in respect of MCA DoLS, as the litigation friend can often be the trigger to a review of P’s liberty, for which there is no automatic reference to seek an adjudication by the court.

Within the Court of Protection arena, there is ongoing, extensive debate as to whether or not the DoLS are compliant with article 5(4) of the European Convention on Human Rights (ECHR). Many would argue that section 21A of the MCA provides compliance with the convention, in that it gives P the opportunity to appeal their deprivation without satisfying the court of the merit of their application and with access to non-means tested legal aid.

However, those that have this right of appeal are often unable to make such an application, as a result of their lack of capacity, which is where the spotlight falls on the fundamental importance of the role of the litigation friend as ‘the trigger’ to a court review.

Without the IMCA or RPR acting as the litigation friend, P could effectively be deprived of their liberty indefinitely, without the ‘lawfulness of detention [being] decided speedily by a court’ (ECHR).

Mostyn J in AB v LCC (A Local Authority) [2011] EWHC 3151 (COP) considered the advantages and disadvantages of the RPR acting as the litigation friend. He said that the benefits were that: “The RPR is likely to have already met the detained person, they will provide continuity, it may be cost effective in avoiding duplication of work, they may well be situated close to the geographical area where the detained person resides, and the detained person will not have to meet another person which may be unsettling or confusing.”

He also identified the main disadvantage as being that P would not benefit from the expertise of the Official Solicitor. However, in practice, this must be balanced with the inevitable delay that will be caused while waiting for the Official Solicitor to accept the invitation to act.

Further confusion over litigation friends is caused by the lack of guidance provided to non-legal professionals in the field, in respect of the limitations and distinctions between roles such as the IMCA and RPR. Due to the ever-increasing obligations and pressures upon professionals such as IMCAs, it can appear complex as to whether or not they may be suitable to act as a RPR and litigation friend contemporaneously.

Play acting

However, at the heart of all of this, the concept of the litigation friend is a very simple one.

Where P is subject to a MCA DoLS, and there are no suitable family members or friends to act as the RPR, if there is an acting IMCA, then it may be that they are requested to act as paid RPR.

However, in acting as RPR, the IMCA may not wish to exercise their right to request a review of the DoLS or to issue an application to the Court of Protection (as per their right), but they may wish to support the application of ?P by acting as the litigation friend.

The IMCA may take the view that P is capable of expressing their ‘wishes and feelings’, and that the IMCA feels in a position to provide the legal representative with the instructions that are both in accordance with P’s wishes and feelings and are based on what (in their view) is in P’s best interests.

The role of the RPR would still stand, but it would not need to interfere with the role of litigation friend. If anything, it would add to the competence of the litigation friend, ?given the extensive knowledge of the case that the RPR will already have.

For example, if the litigation friend in an MCA DoLS case was also acting ?as the paid RPR, they could be consulted as the RPR during a part 8 review (part 8 of schedule A1 to the MCA), while still maintaining a separate role as litigation friend.

The view that they express in ?each role may differ and, while ?the distinction between the roles is easily blurred, it is fundamental to appreciate that each role may well ?take a different form, and require a different approach.

So, how do we solve the problems currently facing the role of the ?litigation friend?

Unfortunately, there is no simple answer. However, the more professionals who volunteer to act in this role, the more the rights, and liberty, of the vulnerable will be protected.

The starting point in cases of deprivation of liberty, following an application to the Court of Protection, must be that the Official Solicitor is the litigation friend of last resort.

While many would argue that MCA DoLS cases require the expertise of the Official Solicitor, it is apparent that, particularly in light of the ever-increasing volume of cases before the Court of Protection, there are many advantages to the litigation friend being a person that has direct contact with P and has an extensive knowledge of the case.

Given the nature of these cases and the wording of the convention, it is key that these cases are heard promptly; there is arguably no justification for delay.

It is, therefore, of fundamental importance that, wherever the delay caused by the appointment of the Official Solicitor can be avoided, it should be.

Quick fire

?Q: Can I act as litigation friend if I am already acting as ?the IMCA?

A: Yes

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