- communicating with and taking instructions from your client
- representing the subject of the proceedings (P) and ensuring P’s effective participation
- your duties of confidentiality and disclosure
- good practice in the Court of Protection
- funding of P’s legal costs
- applications under section 21A Mental Capacity Act 2005
- other legal issues arising in the course of the case
This practice note is the Law Society’s view of good practice in this area, and is not legal advice. For more information, see the legal status.
Who should read this practice note?
All lawyers who are seeking appointment or acting as accredited legal representatives (ALR) in the Court of Protection (CoP).
Importantly, this practice note applies only to situations where the ALR is acting for the subject of the proceedings – (P) – where P has been joined as a party. For further information, see the next section.
All references in this note to rules are references to the CoP Rules 2017 (as amended).
What is the issue?
The CoP Rules provide for an ALR to assist a P who lacks capacity to conduct proceedings to respond to applications before the CoP.
This is one of a 'menu' of options open to the judge in the CoP to ensure that P can participate effectively in the proceedings.
Practitioners wishing to act as ALRs must:
- be members of the Mental Capacity (Welfare) accreditation scheme, and
- have fulfilled the additional requirements for approval under that scheme as an ALR
There is no scheme which accredits ALRs in cases which concern P’s property and affairs. Accordingly, the court has no power to appoint an ALR in such cases.
This practice note is intended to provide practical guidance to members of the scheme in carrying out their duties to clients and to the CoP.
For the purpose of this practice note, P is to be understood to be the client of the ALR, notwithstanding the fact the ALR has been appointed by the court.
The right to legal advice and representation before the CoP
The European Convention on Human Rights (ECHR) has emphasised the gravity of cases concerning legal capacity, and consequentially, the need for effective protection of the rights of those said to lack capacity, including the role of independent legal representatives. See MS v Croatia (App no 36377/10).
Experience since the ALR scheme came into force has shown that ALRs can play a vital role in ensuring that a P who lacks capacity is at the centre of proceedings in the CoP.
Senior Judge Hilder confirmed in Re KL (A Minor: Deprivation of Liberty)  EWCOP 24 that ALRs are “much valued by the court".
Given the vulnerability of the client group – who will, by definition, lack capacity to conduct the proceedings – and the importance of the issues litigated in the CoP, practitioners appointed as ALRs must demonstrate high professional and ethical standards to maintain confidence in this sensitive role.
When should an ALR be appointed?
Under rule 1.2(1) of the CoP Rules, the court has to give thought in every case to how P should take part in the case.
It gives the court a menu of options, of which the appointment of an ALR is one.
The factors the court should consider when deciding which of the options to select are set out in rule 1.2(1):
- "(a) the nature and extent of the information before the court;
- (b) the issues raised in the case;
- (c) whether a matter is contentious; and
- (d) whether P has been notified in accordance with the provisions of Part 7 and what, if anything, P has said or done in response to such notification."
The question of whether it is appropriate to appoint an ALR is primarily one for the judges.
Practice Direction (PD) 1A gives judges some 'pointers'. The most important paragraphs are 9 to 11:
"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 (e.g. 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"
While there has been limited case law about the situations when it is appropriate to appoint an ALR, the decision in Re KL  EWCOP 24 confirms that it will "generally be unlikely" for the court to appoint an ALR in a case concerning a 16 or 17-year-old.
How is an ALR appointed?
In many cases, the appointment is made by the court of its own motion.
We maintain a list of those who have been accredited as ALRs, which is updated monthly, and made available to the CoP judiciary.
HM Courts and Tribunal Services has made arrangements for those on the list within the relevant region to be approached on a ‘turn-taking’ basis where an ALR is required in a specific case.
It is also possible for an application to be made for a particular person to be appointed as ALR. This only happens where the ALR has already done work on P’s behalf instructed, for instance, by their relevant person’s representative (RPR).
It is not appropriate for ALRs to accept invitations to act directly from statutory bodies.
Deciding whether to act as ALR in a particular case
1. Approach by the court
In most cases, the question will arise following the invitation by the court to accept appointment.
If you are approached to act as an ALR, you can take as a starting point that the judge involved considers that it is, in principle, appropriate for an ALR to be appointed.
However, you should still consider:
- whether (and why) you believe that the case is one – in principle – where an ALR is appropriate
- whether you, personally, are the appropriate person to act as ALR
In practice, it is unlikely – if possible – that you will take the view that the case is (in effect) so straightforward that neither an ALR nor a litigation friend is required to secure P’s participation. Rather, the question for you is likely to be whether a litigation friend, rather than an ALR is required.
While it is not possible to set out a definitive list of factors which point towards a litigation friend rather than ALR being appropriate, experience has shown that the following factors are likely to require an ALR to consider carefully whether a litigation friend is required to act on P’s behalf:
- where acting as both ALR and representative before the court is likely to mean that it is not possible to establish or maintain a working relationship with P
- where complex and novel points of law are likely to be involved
- where the proceedings are likely to involve fact-finding
- where the matter is contested with evidence to be given at a final hearing
As to whether you, personally, are the right person to act as ALR, it is important to emphasise that appointment as an ALR is a personal appointment.
You should therefore only accept an invitation from the court to act:
- if you have sufficient capacity to accept the obligations which flow from the appointment
- if you have sufficient expertise to address any specific issues which appear likely to arise on the facts of the case (for instance, if the case involves a 16 or 17-year-old, you would need to be clear that you have sufficient expertise in the other relevant legislation applying to that age group)
- where P is likely to be eligible for legal aid, your firm has the appropriate legal aid contract (see section 7 below)
That an ALR is a personal appointment does not mean that every task needs to be undertaken by the ALR themselves, but it means that the ALR is responsible for the conduct of the proceedings on behalf of P.
We consider that those who work part-time are entirely capable of acting as an ALR, assuming they have taken appropriate steps to address times when they may not be available.
In all situations, you should satisfy yourself that appropriate funding arrangements are in place before accepting an appointment. This is considered below in section 7.
You should take steps to liaise as soon as possible with the court if you do not consider that the case is, in fact, suitable in principle for an ALR, that you personally are the appropriate person to act, or that appropriate funding arrangements are in place.
You should also take steps to alert the court as soon as possible if, subsequent to your appointment, it becomes clear that there is a problem with your continuing to act, whether that is because the case is no longer suitable for an ALR, or because of a problem relating to your personal circumstances.
2. Application to the court
If the proposal to appoint you as ALR is made by way of application to court, then the same considerations as set out above apply.
However, no assumption can be made that a judge has already applied their mind to the question of whether or not an ALR is appropriate in principle.
The appropriateness of the appointment should be addressed in the initial application.
Communication with P
Initial contact with the client – preparing to meet P
An ALR’s specialism and expertise has particular value in communicating with P.
The Strasbourg court has emphasised the importance of legal representatives who are representing clients in legal capacity or deprivation of liberty proceedings meeting with their client:
- MS v Croatia (No 2)  ECHR 196
- AN v Lithuania (App No. 17280/08)  ECHR 462
This judgement reflects essential good practice, and the expectation is that you will attend on P personally and only exceptionally delegate this task to others.
However, this does not preclude an ALR being accompanied by an assistant so that P also develops a rapport with other members of the ALR’s firm.
If it becomes clear that the ALR cannot establish a constructive relationship with P and thinks another professional would be better placed to do so then this is a trigger for discharging the appointment.
It is important than an ALR is not placed at unnecessary risk. If you are concerned about visiting P alone then consider the following:
- ask a colleague to attend with you
- ask for assistance from staff, for example, a nurse/carer who has a positive relationship with P
- consider remote attendance
If there remains an unacceptable level of risk, then an ALR’s appointment should be discharged.
The number of meetings you need to have will depend on the unique circumstances of P.
Because, by definition, an ALR will only be appointed where P lacks capacity to conduct proceedings, it is likely that the deficits that give rise to the lack of that capacity may also present particular support and communication needs: see section 5 ('representing P and ensuring P's effective participation').
Client care letters
Client care letters raise particular challenges when working with clients who lack capacity to conduct litigation. The general rules are summarised below.
Paragraphs 3.1 to 3.6 of the SRA Code of Conduct for Solicitors, RELs and RFLs outline client care requirements with regard to service and competence.
These paragraphs state that solicitors must provide a proper standard of service, which takes into account the individual needs and circumstances of each client.
Paragraphs 8.6 to 8.11 of the SRA Code of Conduct for Solicitors, RELs and RFLs outline client care requirements with regards to client information and publicity. This includes providing clients with the information they need to make informed decisions about the services they need, how these will be delivered and how much they will cost.
These paragraphs should be interpreted with reference to the seven SRA principles of the SRA Standards and Regulations 2019.
Your initial letter to the client explaining terms of business is often called the client care letter. It acts as:
- a clear record for you and the client of the instructions given and what will happen next
- a useful guide for your client on your role and responsibilities
- evidence against complaints of insufficient information or inadequate professional service
You should tailor client care letters to the individual needs of the client, reflecting their communication needs.
You should use clear, simple and jargon-free language.
In some cases, it may be inappropriate to send a letter: for example, if the likelihood of distress to your client is significant.
If for any reason you consider it inappropriate to send the client a client care letter, you should retain the letter on file and go through the letter in person with the client when appropriate and as far as their comprehension allows.
You should always record the reason for taking this approach.
As set out above (paragraph 3.2), the ALR’s appointment comes from the court rather than from the individual client or from a litigation friend such as the Official Solicitor.
Although ALRs are appointed by the court, ALRs should adhere to the SRA Code of Conduct for Solicitors when providing client care information to P and in communicating more generally with P.
This will need to be modified to reflect the nature of the ALR’s appointment by the court rather than directly.
It remains important that the above information is clearly recorded and kept on file and, where appropriate, provided to P in writing.
For more information, see our practice note on client care letters and meeting the needs of vulnerable clients.
The obligations of an ALR
The ALR’s functions are set out in rule 1.2(2)(b) as being "to represent P in the proceedings and to discharge such other functions as the court may direct".
By rule 17.9, the ALR is under an obligation to discharge their functions on behalf of P "fairly and competently".
Rule 17.10 provides that the court cannot appoint an ALR unless it is satisfied that the ALR meets the criteria in rule 17.9.
In addition, the ALR will hold the following responsibilities:
- a duty to the court to comply with rules 3A and 147
- general duties to the court pursuant to the SRA Code of Conduct for Solicitors
- professional responsibilities to the client and others in line with the SRA Code of Conduct for Solicitors
- a duty to the LAA to comply with the contracting arrangements
On appointment, and once funding is secured (see section 7 below), it is likely that you will take the sort of steps frequently taken by the solicitor retained by the Official Solicitor acting as litigation friend of P, for example:
- making arrangements to meet P and establish P’s wishes and feelings about the decisions being considered by the court
- deciding how to keep P informed as the litigation progresses
- notifying the parties and other persons (e.g. care home staff) of the appointment and filing notices
- obtaining and considering the papers; diarising key dates
- obtaining and considering health and social care and other disclosure records
- ongoing correspondence with the LAA where appropriate
- deciding whether to instruct counsel
- preparing for the next hearing including consideration of how P should take part
As noted above in section 1, it is important to understand that the appointment as ALR is a personal appointment.
This does not mean that the ALR needs to take every step in the proceedings personally. However, it does mean that they cannot delegate the making of substantive decisions about the conduct of the proceedings to anyone else.
It is desirable for the person appointed as ALR to attend hearings, but we recognise this is not always possible or necessary when, for example, counsel is instructed to attend and the ALR is available to give instructions without delay.
The ALR should always ensure that there are contingency arrangements to provide for situations where the ALR will not be available for any period of time, for instance because of leave arrangements.
It is recognised that some ALRs work on a part-time basis and so arrangements should be made to cover hearings on non-working days.
There is not an expectation that ALRs will attend court on non-working days, but that they will have made substantive decisions ahead of time and fully briefed a colleague or counsel to attend on their behalf.
Representing P and ensuring P’s effective participation
The role of the ALR is similar to that of a litigation friend who represents P to ensure their participation in proceedings.
Ensuring P’s participation in the proceedings involves visiting them to keep them informed of progress on the case determining – if this is possible – their wishes, feelings, values and beliefs in respect of the substantive issues before the court. This could be a task which will require you to have specialist expertise if P has communication difficulties.
You should ensure that you are familiar with the guidance of Mr Justice Charles (reissued by Mr Justice Hayden) on facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings.
The guidance provides useful suggestions for those representing P as to how P’s participation in proceedings might be enhanced, including:
- identification of P's needs within the court process
- ascertaining P's wishes and feelings
- attendance at a hearing or hearings
- meeting the judge
- P giving 'information' to the court
- P giving evidence to the court
The courts have made clear that the role of a litigation friend – and hence of an ALR – acting on behalf of P is to form a view as to what is in P's best interests, applying the test set out under section 4 of the Mental Capacity Act 2005, and then advance that view to the court, although it may not accord with what P is asserting (Re NRA and others  EWCOP 59 at paragraph 170).
The ‘solution’ you must advance on P’s behalf is the substantive outcome that you consider would best meet P’s interests.
The Supreme Court said in Aintree University Hospitals NHS Foundation Trust v James and others  UKSC 67:
"The purpose of the best interests test is to consider matters from the patient's point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient's wishes are.
"Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament.
"In this case, the highest it could be put was, as counsel had agreed, that 'It was likely that Mr James would want treatment up to the point where it became hopeless'.
"But insofar as it is possible to ascertain the patient's wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being."
You are not required to advance a case that would accord with P's wishes if you consider that to do so would be unarguable (Re NRA and others at paragraph 144).
But, in all cases, you must take all necessary steps to communicate P's wishes to the court upon the relevant issues in the case: see by analogy RP v UK (App No 38245/08, decision of 9 October 2012).
You should proceed with particular caution where P’s right to liberty under article 5 of the ECHR is engaged, and in particular, in cases brought under section 21A Mental Capacity Act 2005 in relation to authorisations granted under the Deprivation of Liberty Safeguards regime (see section 9 below).
ALRs are likely to face dilemmas regularly encountered by those acting for litigation friends in the CoP, for instance:
- P desperately wants to leave the care home but there is strong evidence that this will put them 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
Alternately, a complex legal issue may unexpectedly arise, for example over disclosure of relevant information (see section 6 below) or the potential need for a ‘closed material’ hearing.
It is strongly suggested that you should not attempt to 'soldier on' if you find yourself in difficulty discharging the various duties which you owe. This includes the situation where you consider that there is a conflict between P’s wishes and what you consider is substantively in P’s best interests.
In such cases, it is suggested that you exercise caution by approaching the court to seek further directions, which you may do at any time under rule 17.11.
The directions could include the appointment of a litigation friend who could instruct you to act as solicitor in the conventional fashion. However, it will be a decision for the litigation friend as to who to retain to act for P.
Solicitors hold rights of audience in the COP, so ALRs can undertake advocacy themselves. This is a decision for you to make.
Alternatively, you may wish to ask counsel to carry out the advocacy on a given case. You should make sure that counsel has the appropriate experience and skill in this area of work.
Your duties towards your client
Duty to act in the best interests of clients
As set out above, an ALR is required to act in P’s best interests, applying the test set out under section 4 of the Mental Capacity Act 2005.
An ALR who is a solicitor is also under an obligation to act in the best interests of their client under Principle 7 of the SRA Principles, which applies whether or not the client has litigation capacity.
The term 'best interests' here does not necessarily mean the same as 'best interests' for the purposes of the Mental Capacity Act 2005. In practice, however, in the particular context in which ALRs will be acting, the two duties are likely to impose similar, if not identical, obligations.
See 'Professional conduct' in the legal status and section 12.1 of this practice note.
If you are in doubt, you should seek guidance from the Solicitor's Regulation Authority's professional ethics helpline.
Duty of confidentiality
This duty is addressed in paragraphs 6.3 of the SRA Code of Conduct for Solicitors.
You must keep the affairs of clients and former clients confidential except where disclosure is required or permitted by law or the client consents if they have capacity to do so.
Previous versions of the Code provided for specific exceptions to the absolute duty of confidentiality. These do not appear in the 2019 code.
Instead, the SRA has provided guidance as to the circumstances where it may take the view that a breach of confidentiality is justified. It is important to be familiar with this guidance.
If you are appointed as ALR, your starting point should be that you will require the court’s consent before disclosing any confidential information about P.
Rule 17.11 allows you to seek directions from the court at any time.
For guidance as to how you should approach specific situations, contact the SRA's professional ethics helpline.
You should not disclose information passed to you in circumstances giving rise to a duty of legal professional privilege, which is absolute: see R v Derby Magistrates ex p B  AC 487, L (a minor)  AC 17 (see 24B-G) and B v Auckland Law Society  2 AC 736.
If you find yourself in this situation - for example, if disclosure of privileged information has been made mistakenly - contact the SRA's professional ethics helpline for advice.
Duties of disclosure and circumstances where non-disclosure may be appropriate
Paragraph 6.4 of the SRA Code of Conduct for Solicitors deals with the issue of disclosure.
Where you are acting for a client on a matter, you make the client aware of all information material to the matter of which you have knowledge, except when:
- the disclosure of the information is prohibited by legal restrictions imposed in the interest of national security or the prevention of crime
- your client gives informed consent, given or evidenced in writing, to the information not being disclosed to them
- you have reason to believe that serious physical or mental injury will be caused to your client or another if the information is disclosed, or
- the information is contained in a privileged document that you have knowledge of only because it has been mistakenly disclosed
It is our view that, given that the ALR’s appointment stems from the court, you will have an implied power to disclose information to the court for proper purposes.
ALRs do not always have to notify other parties of an application for directions under rule 17.11. There will be some very limited circumstances in which the CoP may give permission to withhold information from other parties. This issue has been considered in guidance issued by Mr Justice Hayden.
ALRs may decide what information, and in what level of detail, should be disclosed to P.
If you consider it is necessary to withhold a material fact from P (for example, a plan to move P or covert medication) the court should be informed and asked whether an order in respect of withholding information is required.
Funding of P’s legal costs
Appointment as an ALR does not bring fundingwith it. You will need a good understanding of the availability of legal aid in the CoP.
In all cases other than section 21A cases, any legal aid will be means-tested.
You are not required to hold a legal aid contract in order to become an ALR.
However, if you do not hold a legal aid contract in either mental health or community care, then you will not be able to accept appointments in any case where P may be eligible for legal aid.
As P will be eligible for non-means-tested legal aid in a case brought under section 21A, you should not accept an invitation to act in such a case unless you have a legal aid contract.
Before accepting appointment as an ALR, you will need to make the following enquiries, which may involve the court authorising you to investigate P’s means before accepting the appointment.
In all cases, the first step will be to establish the availability of legal aid.
If legal aid is available to P, you must not accept the appointment unless you have the necessary legal aid contract to apply for legal aid on P’s behalf.
Where legal aid is available, you will need to ensure that you are permitted under the terms of your legal aid contract and have appropriate authorisation from the court to sign an application either for legal aid or legal help on a client’s behalf.
Legal aid for cases undertaken by ALRs
P is very likely to lack capacity to apply for legal aid and sign the legal aid application form themselves.
You should make sure the court has made an order authorising you, as ALR, to sign the legal aid application on P’s behalf.
The decision on whether to exercise the power in regulation 30(5) of the Civil Legal Aid (Procedure) Regulations 2012 to waive any or all of the requirements of regulation 30 is delegated to providers in the case of 'authorised representation' (including authorised representation that is provided as 'emergency representation').
Legal aid for applications under section 21A Mental Capacity Act 2005
Non-means tested legal aid is available for P or P’s relevant person's representative (RPR) for proceedings under section 21A, but only as long as either an urgent or standard authorisation is in force throughout the duration of the proceedings.
You should always check that there is a current authorisation in force and request to see a copy of the standard authorisation.
It may be that the court is invited to make orders extending the date of expiry of the standard authorisation. Whether it is appropriate to do so in any given case should be considered on a case-by-case basis.
In any event, the court does not have the power to extend a standard authorisation beyond the maximum 12-month period provided for in Schedule A1.
It is therefore vital to ensure that the supervisory body takes appropriate steps to bring about a fresh authorisation to secure continuity of legal aid and (where relevant) the instruction of expert witnesses.
If the standard authorisation is terminated or is allowed to lapse for any period, you must inform the Legal Aid Agency (LAA) immediately.
The LAA will not pay for any work not covered under the scope of the legal aid certificate, particularly work not connected with the section 21A challenge.
While you may have been instructed on behalf of P to make an application under section 21A and be seeking appointment as ALR as part of the initial order, you will not have been formally appointed until the court makes that order. In those circumstances, you should seek for the legal aid application to be signed by the person instructing you to bring proceedings, which will usually be P’s RPR.
It is important that you familiarise yourself with the relevant regulations and the current guidance available to practitioners. See Regulation 5, Civil Legal Aid (Financial Resources and Payment for Services Regulations 2013, SI no 480480 and paragraph 7.14 of the 2018 Standard Civil Contract Mental Health Specification.
Further guidance can be found at paragraph 8 of the Contract Management –Mental Health Guidance 2017.
Legal aid for other health and welfare proceedings
Where P has been joined as a party and an oral hearing has, or is likely to be listed, legal aid is likely to be available to meet P’s legal costs on a means-tested basis.
You will need to obtain evidence of P’s income and capital. The CoP should be asked to authorise you to investigate P’s means and to apply for legal aid (as the CoP frequently authorises the Official Solicitor to do before the OS decides whether to accept an invitation to act as litigation friend).
There may be some information available at an early stage from statutory bodies involved (for example a local authority which acts as appointee).
In the event that P is required to make a contribution, you will need to ensure that the CoP has made directions to provide for how that contribution will be paid.
Legal aid for applications under the streamlined procedure
ALRs may be asked to represent P in applications brought by statutory bodies under the streamlined procedure using COPDOL11. Such representation will be subject to appointment by the court. Legal aid in these cases will be means tested.
Legal representative level of funding is available only in cases in the CoP where an oral hearing is listed, and where the case concerns issues specified by the LAA.
In cases where no oral hearing is listed, practitioners will be able to provide advice under Legal Help but this does not permit ALRs to take any steps which could be considered to be 'conducting proceedings' and therefore an alternative source of funding will be required to cover your legal costs of undertaking these steps.
Alternative sources of funding
Where your legal costs are to be met from P’s funds, an order will need to be made to provide for both interim and final payments.
It will need to make provision for:
- when interim bills can be raised
- payment of disbursements
- who will be responsible for making payments: for example, whether P has a deputy or attorney for property and affairs who can be directed by the court to make payment on the provision of invoices
- whether P’s costs can be agreed by a deputy or attorney for property and affairs or whether the court will require P’s costs to be assessed at the conclusion of the case
Consideration should also be given to whether any other party, such as the responsible statutory body where they have brought the application, would be willing to meet P’s legal costs.
In all cases you should ensure that the court authorises you to:
- investigate P’s finances
- sign an application for legal aid (relevant if P has savings slightly above the legal aid threshold)
- deal with any enquiries from the LAA on P’s behalf
- accept an offer of legal aid on P’s behalf
You will need to make sure before accepting instructions that either:
- P is entitled to legal aid and there are mechanisms to ensure that any contributions due can be met
- P is not currently entitled to legal aid but there is a source of funding either from P’s estate or another party, and this is clearly set out in an order
There will be some cases when you will be unable to accept appointment as ALR because there is no available source of funding.
In some cases, the ALR will have to undertake enquiries as to P’s finances which will not attract payment and there may therefore be some uncertainty as to whether the ALR will be able to accept instructions. Inevitably, these cases will be less attractive than those where the funding source is clear from the outset.
We expect that ALRs will be willing to make such enquiries, but you should not be placed under pressure to accept appointment where there is no available source of funding, nor should you be expected to undertake significant unfunded work.
In cases where P is not eligible for legal aid, you should, before commencing any work, prepare an estimate of costs giving details of hourly rates and an estimate for counsel’s fees and other disbursements, as you would for any other private client, and either:
- in a case where P has a deputy or attorney for property and affairs, send this to them for agreement
- where there is no such arrangement in place, send this to the court for agreement/approval
At the conclusion of the case, if P has a deputy or attorney for property and affairs, they may agree that your costs can be agreed without the need for formal assessment.
If P does not have a deputy or attorney for property and affairs, the court should be approached for consideration of whether the COP judge can summarily assess your costs to avoid the need and expense of formal assessment. This is only likely to be appropriate in cases where your costs are at the lower end (up to £3,000 plus VAT).
In all other cases, you should arrange for your costs to be formally assessed.
Good practice in the CoP
You should take all appropriate steps to ensure that hearings are not delayed.
You must be familiar with the CoP Rules and the relevant practice directions, especially Practice Direction 3B on case pathways.
Access to health and social care records
This will usually be secured through a disclosure order by the court.
It is good practice to consider what disclosure will be required at an early stage to ensure you have sufficient time to serve relevant third parties and absorb the material disclosed.
You should ensure that you are familiar with, and able to make meaningful representations on, the test for expert evidence in part 15 of the CoP Rules.
You should confirm in advance the availability of all witnesses, including experts, who are expected to attend the hearing.
You should be aware of IB 5.6 which provides that you should not appear as an advocate if you or anyone in your firm will be called as a witness.
You can take practical steps to reduce the risk of difficulties arising by ensuring that agreed minutes of events such as round table meetings are prepared.
Keeping capacity under review
It is important always to keep P’s capacity under review, both to conduct the proceedings and to take the substantive decision(s) in issue.
If you believe that P has regained either or both, you should bring this to the attention of the court at the earliest possible opportunity.
Applications under section 21A Mental Capacity Act 2005
Where you are appointed as an ALR in a section 21A case, you should be aware of the following matters:
- s21A applications are governed by the procedure in PD 11A. Accordingly, the stages in PD 3B (case management) do not apply; however, the court is very likely to follow the other elements set down in the Practice Direction
- there might be very limited time to prepare if you are appointed for the first hearing (usually within five days of issue – see paragraph 24 PD 111)
- s21A applications may have been made by P or by the RPR on behalf of P. ALRs should ensure that they are aware of the guidance given by Baker J in AJ v A Local Authority  EWCOP 5 and in Re RD and others  EWCOP 49 as to when applications should be made by RPRs
- you should be aware of the range of remedies available under s21A, but also of the fact that once an application has been made, the court has its full decision-making powers available in relation to P’s welfare or property and affairs (see KK v CC and STCC  EWHC 2136 (COP)
- the need for "rigorous probing, searching questions and persuasion" is as great, if not even greater, in s21A applications as in other welfare cases. In most s21A applications, the key question for the court will be whether the 'best interests requirement' for the purpose of paragraph 16 of Schedule 1A is met. This includes an assessment as to whether the deprivation of P’s liberty represents a proportionate response to the risk of harm to P: this should be borne in mind when crafting directions in s21A cases, and considering what information the court will need. The range of investigations required will vary with the facts of each case
- It is particularly important to ensure that an authorisation remains in place at all times, to ensure that the legal aid problems identified in section 8 above do not arise
Other legal issues
Other legal issues
Whilst representing P, an ALR should be able to identify other legal issues where P may require legal advice and assistance. This may include:
- a claim for breaches of rights under the ECHR
- family law matters (such as divorce or Children Act issues)
- public law
- community care
- clinical negligence
Where you consider that they do have sufficient expertise to represent P in relation to another legal issue, a litigation friend will be needed if P lacks capacity to conduct proceedings.
Importantly, this is a requirement of legal aid contracts (see 2018 Standard Civil Contract Specification General Rules).
The appointment of a solicitor as ALR does not grant them any right to act as litigation friend in proceedings outside the CoP.
If it appears necessary for papers from the CoP case to be disclosed for the purposes of pursuing another legal issue, the CoP’s permission will be needed.
An ALR remaining instructed by a litigation friend
There might be cases in which (either of their own motion or at the instigation of another party or the CoP) it is identified that P requires a litigation friend, rather than representation by an ALR.
There is no reason in principle why an ALR could not then be instructed by that litigation friend. There may often be advantages, as the ALR will be familiar with P’s circumstances and the case more generally.
Ultimately, the decision as to representation is one for the litigation friend.
Legal and other requirements
- Mental Capacity Act 2005
- Mental Capacity Act 2005 Code of Practices (and an awareness of the paragraphs of the 2007 and 2009 Codes to the main Act and DoLs respectively that are out of date)
- The Court of Protection Rules
- Care Act 2014 and accompanying statutory guidance
- The Equality Act 2010
- Social Services and Well-Being (Wales) Act 2014 and accompanying statutory guidance
- Mental Health (Wales) Measure 2010
Legal aid requirements
ALRs with a legal aid contract should also have knowledge of:
Mental Capacity Accreditation
We operate the Mental Capacity Accreditation Scheme.
Not all members of the scheme are eligible to be appointed as ALRs. Your membership certificate will make it clear whether you can act as an ALR or not.
Practice Advice Service
The Practice Advice Service can be contacted on 020 7320 5675 from 9am to 5pm on weekdays.
SRA professional ethics helpline
The SRA's professional ethics helpline for solicitors offers advice on the SRA Standards and Regulations to solicitors, trainees and solicitor apprentices. You can choose to remain anonymous.
Call 0370 6062577 from 10am to 1pm and 2pm to 4pm, Monday to Friday.
Chat with the team online between 9am and 10am, 1pm and 2pm, and 4pm and 5pm, Monday to Friday (closed on Wednesday).
Law Society publications
This practice note has been prepared by our Mental Health and Disability Committee.
Practice notes represent the Law Society’s view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them but doing so will make it easier to account to oversight bodies for your actions.
Practice notes are not legal advice, and do not necessarily provide a defence to complaints of misconduct or poor service. While we have taken care to ensure that they are accurate, up to date and useful, we will not accept any legal liability in relation to them.
For queries or comments on this practice note contact our Practice Advice Service.
There are seven mandatory principles in the SRA Standards and Regulations which apply to all aspects of practice. The principles apply to all authorised individuals (solicitors, registered European lawyers and registered foreign lawyers), authorised firms and their managers and employees, and to the delivery of regulated services within licensed bodies.
Must – a requirement in legislation or a requirement of a principle, rule, regulation or other mandatory provision in the SRA Standards and Regulations. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or regulations.
Should – outside of a regulatory context, good practice, in our view, for most situations. In the case of the SRA Standards and Regulations, a non-mandatory provision, such as may be set out in notes or guidance.
These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best route to meet the needs of a particular client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why your alternative approach is appropriate, either for your practice, or in the particular retainer.
May – an option for meeting your obligations or running your practice. Other options may be available and which option you choose is determined by the nature of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.