Accredited legal representatives in the Court of Protection

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 please see the next section.

All references in this note to Rules are references to the CoP Rules 2007 (as amended).

What is the issue?

The CoP Rules provide for an ALR to assist a person 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 must have fulfilled the additional requirements for approval under that scheme as an ALR.

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 that the ALR has been appointed by the court and there will not be a conventional solicitor-client relationship.

Who can appoint an ALR and when should this happen?

The court can appoint ALRs of its own initiative or can do so upon application by any person (see Rule 3A (1)/Pilot Rule 1.2(1)).

Rule 3A (1)/Pilot Rule 1.2(1) makes it clear that 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 ALR is one.

The factors the court should consider when deciding which of the options to select are set out below:

'(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.'

Practice Direction (PD) 2A gives the judge some 'pointers'. The most important paragraphs are 9-12. These 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 (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

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 Rule 3A 2 (d) or (e).'

The PD envisages that in many cases no representative will be needed because these are non-contentious property and affairs cases and 'experience has shown that they can be dealt with on paper and without joining P as a party or appointing anyone to represent P.' (PD 2A, paragraph 3).

This suggests that the court is more likely to appoint an ALR in a case where the issues are relatively defined.

It is also important to note that paragraph 10 of the Practice Direction suggests that there might be some 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.

Because ALRs will be taking on a new role there is limited comment about the potential for their appointment in case law.

As the scheme for ALRs is rolled out, it is likely that their role will be the subject of judicial comment and/or guidance. Accordingly, it is important that ALRs ensure that they keep abreast of legal developments in this area.

How will ALRs fulfil their responsibilities?

Rule 147 states that a person can be appointed if that person can 'fairly and competently' discharge his or her functions on behalf of P.

The 'functions' are set out in Rule 3A (2) (b): 'to represent P in the proceedings and to discharge such other functions as the court may direct'.

An 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, RELs and RFLs  
• professional responsibilities to the client and others in line with the SRA Code of Conduct for Solicitors, RELs and RFLs
• a duty to the LAA to comply with the contracting arrangements

On appointment, and once funding is secured (see section 7) 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; 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

Appointment of ALRs by the court

We will maintain a list of those who have been accredited as ALRs, which will be updated monthly, and make this available to the CoP judiciary.

We anticipate that the CoP will develop its own processes for the allocation of cases to ALRs, and that this may be subject to regional variations.  We intend to engage with the CoP to ascertain how it is intended that work will be allocated to ALRs.

ALRs cannot be appointed without consenting to the appointment (Rule 148(2)). We anticipate that ALRs will want to be assured that funding arrangements are in place before accepting an appointment. This is considered below in section 7.

In April 2019, HM Courts and Tribunal Service started a three-month pilot to trial a new system for appointing ALRs. The pilot has since been extended to six months.

Read more about the pilot

Initial contact with the client - preparing to meet 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) [2015] ECHR 196; AN v Lithuania (App No. 17280/08) [2016] ECHR 462.

In our view, this reflects essential good practice, and accordingly you must attend on P personally and should only exceptionally delegate this task to others.

The number of meetings that you will 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 below '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, RELs and RFLs 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.

Instructing counsel

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.

Duty to act in the best interests of clients

As set out in the section above, an ALR is required to act in P’s best interests, applying the test set out under s4 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.

It is important to note that 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

Confidential information

This duty is addressed in paragraphs 6.3 of the SRA Code of Conduct for Solicitors, RELs and RFLs.

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.

Practitioners should be aware that previous versions of the Code provided for specific exceptions to the absolute duty of confidentiality. These do not appear in the current 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 148A allows you to seek directions from the court at any time.

For guidance as to how you should approach specific situations, you should contact the SRA's Professional Ethics Helpline.

Privileged information

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 [1996] AC 487, L (a minor) [1997] AC 17 (see 24B-G) and B v Auckland Law Society [2003] 2 AC 736.

If you find yourself in this situation - for example, if disclosure of privileged information has been made mistakenly - you should 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, RELs and RFLs 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 should note that they do not always have to notify other parties of an application for directions under Rule 148A. 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 by the President of the CoP in RC v CC and X Local Authority [2014] EWHC 131 (COP).

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) the court should be informed and asked whether an order in respect of withholding information is required.

Legal aid for cases undertaken by Accredited Legal Representatives

As P lacks capacity, P is very likely to lack capacity to apply for legal aid and sign the legal aid application form themselves.

This therefore raises the question of who under the legal aid regulations is able to sign the legal aid form on behalf of P in the situation where an accredited legal representative is appointed to represent P?

The relevant regulations to consider are the Civil Legal Aid (Procedure) Regulations 2012.

Licensed work

Regulation 30 of the Civil Legal Aid (Procedure) Regulations 2012 sets out who may make an application for Licensed Work. Normally, applications on behalf of a 'protected party' must be made by a person who is, or proposes to be, the protected party’s litigation friend.

However, regulation 30(5) gives the director of Legal Aid Casework the power to waive any or all of provisions in regulation 30. This would allow the director to accept an application for licensed work submitted on behalf of a client by an accredited legal representative.

However, the other legal aid rules pertaining to that application would need to be met, including the relevant means and merits criteria.

Also note the definition of 'legal representation' at regulation 9 defines this form of service as 'the provision of civil legal services, other than acting as a mediator or arbitrator, to an individual or legal person in particular proceedings where that individual or legal person:

In other words, it is necessary that the client 'is a party to proceedings' or 'wishes to be joined as a party to those proceedings' for services carried out by an ALR to constitute 'legal representation' under licensed work.

The LAA have confirmed that they recognise it will be necessary for discretion to be exercised under regulation 30(5) of the Civil Legal Aid (Procedure) Regulations 2012 to allow an application for licensed work to be made on behalf of a client by an ALR, permitting that ALR to sign the application form.

Although this discretion must be considered on a case-by-case basis, providing the other criteria for legal aid are met the LAA has confirmed that it sees no reason in principle why it would not be appropriate to exercise the director’s discretion in this way.

Providers should make it clear that the application is being made by an ALR and that P is a party or intending to become a party, submitting the appropriate documentary evidence to demonstrate this where necessary

Delegated powers

The decision 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').

This is confirmed on page 4 of the table of delegated authorities for these regulations.

Legal aid for applications pursuant to s21A Mental Capacity Act 2005

Non-means tested legal aid is available for P or P’s relevant person's representative (RPR) for proceedings under s21A, 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.

You should always check any orders agreed at directions hearing to ensure the orders provide for the Standard Authorisation to be extended pending the outcome of the final hearing or to be renewed by the local authority.

If the Standard Authorisation is terminated or is allowed to lapse for any period, you must inform the Legal Aid Agency at once. The Legal Aid Agency will not pay for any work not covered under the scope of the legal aid certificate, particularly work not connected with the s21A challenge.

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 2014 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 therefore need to obtain evidence of P’s income and capital and 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 COPDOL10. Legal aid in these cases will be means tested.

Legal representative level of funding is available only in cases in the Court of Protection 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 ALR’s 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

Private funding from P's estate. 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 who can be directed by the court to make payment on the provision of invoices
• whether P’s costs can be agreed 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.

Avoiding delay

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 those relating to the Case Management Pilot.

The courts increasingly make use of costs sanctions, including wasted costs orders against legal representatives, to ensure compliance with orders and with the CoP Rules.

Access to health and social care records

This will usually be secured through a disclosure order by the court.

It is good practice to give consideration to 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.

Expert evidence

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 Rules.

Witnesses

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.

Human Rights Act matters

It is expected that ALRs will be able to identify where an issue arises under the Human Rights Act 1998 (HRA) and take appropriate steps.

This is most likely to arise in the following circumstances:

• Where you consider a care option placed before the court by a public body fails to acknowledge Ps best interests - the decision in N v ACCG [2017] UKSC 2017 22 makes clear that service decisions made by public bodies are usually to be challenged in the Administrative Court by way of judicial review. Where judicial review appears to be an appropriate remedy, you should be mindful of the requirement to bring any claim promptly and in any event within 3 months of the date of the decision
• Where you identify there has been a breach of P’s human rights under the ECHR. You should be able to identify when there may have been a breach of P’s convention rights and be aware of when limitation expires to ensure that steps are taken promptly. In almost all cases it will be necessary for such a claim to be brought in the county or High Court by way of separate proceedings, which an ALR cannot do as ALR

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.

General

We anticipate that ALRs are likely to be appointed in s21A cases. Issues likely to arise in such applications include:

• s21A applications are governed by the procedure in PD 10AA. Accordingly, the 'stages' in the case management pilot will not apply; however, the court is very likely to seek to apply the other elements of the case management pilot, and will expect to apply the new, stricter, test for expert evidence in the version of Part 15 applying to cases on pilot pathways

• there might be very limited time to prepare if you are appointed for the first hearing (usually within 5 days of issue - see PD10AA 24)

• 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 [2015] EWCOP 5 and in Re RD and others [2016] 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 [2012] 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 the majority of 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

Representing P in CoP proceedings when P is between the ages of 16-18

Because of the complexity of the overlapping legislation, you should accept an appointment as ALR only if you are sufficiently experienced in all the relevant frameworks.

We expect that it will generally be unlikely for the court to appoint an ALR in cases concerning 16 to 18 year olds and that where P is joined as a party it will usually be more appropriate for a litigation friend to be appointed.

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 convention rights
• family law matters (such as divorce or Children Act issues)
• housing
• crime
• public law
• discrimination
• community care
• clinical negligence

You should refer P to another specialist legal adviser if you lack expertise on other significant issues for which they might need legal advice or where you do not hold a legal aid contract to provide advice on that issue and it appears P would be eligible for legal aid.

Where you consider that they do have sufficient expertise to represent P in relation to another legal issue, then if P lacks capacity to conduct proceedings, a litigation friend will be needed.

Importantly, this is a requirement of legal aid contracts (see section 2.40 of the 2014 Standard Civil Contract Specification General Rules).

It is also important to note that 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.

Legal and other requirements

• Mental Capacity Act 2005
• Mental Capacity Act 2005 Code of Practices
• The Court of Protection Rules
• Care Act 2014 and accompanying statutory guidance
• SSIW Act
• The Equality Act 2010
• Mental Health (Wales) Measure 2010

Legal aid requirements

ALRs with a legal aid contract should also have knowledge of:

• 2014 Standard Civil Contract Mental Health Specification
• 2014 Standard Civil Contract Community Care specification
• Category Definitions
• The Civil Legal Aid (Procedure) Regulations 2012
• Delegated authorities

Mental Capacity Accreditation Scheme

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.

Find out more about eligibility and membership

Practice Advice Service

The Practice Advice Service can be contacted on 020 7320 5675 from 9am to 5pm on weekdays.

Solicitors Regulation Authority Professional Ethics Helpline

Solicitors may obtain further help on matters relating to professional ethics from the SRA's Professional Ethics Helpline (0370 606 2577) from 9am to 5pm on weekdays.

Law Society publications

• Assessment of Mental Capacity, 4th ed
• Meeting the Needs of Vulnerable Clients

Acknowledgements

This practice note has been prepared by the Law Society's Mental Health and Disability Committee.