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Practice note

Accredited legal representatives in the Court of Protection

10 Nov 2017

26 minutes read

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Introduction

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 Law Society's 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.

The right to legal advice and representation before the CoP

The 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).

The Law Society anticipates that the ALR will play an essential role in ensuring that a P who lacks capacity is at the centre of proceedings in the CoP. 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, those practitioners who are appointed as ALRs must demonstrate high professional and ethical standards to maintain confidence in this sensitive role.

The obligations of an ALR

The obligations on an ALR are set out in the CoP Rules as follows:

Rule 147 - An ALR must be able to discharge his or her functions in relation to P 'fairly and competently'.
Rule 148 - A requirement for the consent of the ALR representative before he or she is appointed, and the requirement that the court is satisfied that the representative satisfies the criteria in Rule 147.

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:

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

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).'

You should also note that 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 (Chapter 5)
professional responsibilities to the client and others in line with the SRA Code
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

The Law Society will maintain a list of those who have been accredited as ALRs, which will be updated monthly, and will make this available to the CoP judiciary. The Law Society anticipates that the CoP will develop its own processes for the allocation of cases to ALRs, and that this may be subject to regional variations. The Law Society intends 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)). The Law Society anticipates that ALRs will want to be assured that funding arrangements are in place before accepting an appointment. This is considered below in section 7 under the heading 'Funding of P's legal costs'.

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.

Communication with P

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 the Law Society’s 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.

Chapter 1 of the SRA Code of Conduct 2011 (Client Care) outlines client care requirements.

Chapter 1 provides that solicitors must provide a proper standard of service, which takes into account the individual needs and circumstances of each client. 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.

Chapter 1 should be interpreted with reference to the 10 mandatory principles in the SRA Handbook.

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 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 the Law Society's practice note on client care letters and meeting the needs of vulnerable clients.

Representing P and ensuring P’s effective participation

The role of the ALR has some elements in common with the role of representatives appointed in the Mental Health Tribunal (MHT) under Rule 11(7)(b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. In Rule 11(7) cases, the representative acts for a client without capacity to appoint them (and who is also likely to lack capacity to conduct the Tribunal hearing without an intermediary).

There will be some cases where the guidance issued to Rule 11(7) (b) representatives will be useful to you, but care should be taken not to equate the two roles, especially if you are familiar with the role of a Rule 11(7)(b) representative. MHTs are recurring events which will almost always involve an oral hearing and essentially consider a snapshot in time to which the statutory criteria are applied. They rarely engage in contested fact finding. A hearing in the CoP might cover a much more extensive range of issues in which it could make one-off decisions with life changing consequences. If a patient detained in hospital loses their application to the MHT, they can apply again. However, if P is moved away from their home by the CoP, which also authorises the sale of the home, this decision cannot be easily revisited.

The role of the ALR is not dissimilar to that of a litigation friend who represents P to ensure their participation in proceedings. Ensuring P’s participation in the proceedings involves both minor matters such as visiting them to keep them informed of progress on the case and more complex matters. Representing P means 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 entitled 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 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 s4 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 [2015] EWCOP 59 at paragraph 170). The ‘solution’ that you must advance on P’s behalf is the substantive outcome that you consider would best meet P’s interests. The Supreme Court has said (Aintree University Hospitals NHS Foundation Trust v James and others [2013] 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 ECHR Article 5 is engaged, and in particular, in cases brought under s21A Mental Capacity Act 2005 in relation to authorisations granted under the Deprivation of Liberty Safeguards regime (see further 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 him or her at life-threatening risk
P wants to continue a relationship with a person who is abusive and manipulative, and takes advantage of the client’s vulnerability
P wants to refuse treatment but this could result in death

At least until the courts have had the chance to consider the role of ALRs in practice, it is 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 148A. 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.

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 ensure 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 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 4 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 box above and 12.1 Legal and other requirements.

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 Chapter 4 of the SRA Code of Conduct. You must achieve Outcome 4.1 which requires solicitors to 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 the previous version 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 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

Chapter 4 of the SRA Code of Conduct deals with the issue of disclosure.

The relevant outcomes which you must achieve are:

Outcome 4.2: any individual who is advising a client makes that client aware of all information material to that retainer of which the individual has personal knowledge

Outcome 4.3: you ensure that where your duty of confidentiality to one client comes into conflict with your duty of disclosure to another client, your duty of confidentiality takes precedence

The relevant indicative behaviours are:

IB 4.4: where you are an individual who has responsibility for acting for a client or supervising a client's matter, you disclose to the client all information material to the client's matter of which you are personally aware, except when:

(a) the client gives specific informed consent to non-disclosure or a different standard of disclosure arises

(b) there is evidence that serious physical or mental injury will be caused to a person(s) if the information is disclosed to the client

(c) legal restrictions effectively prohibit you from passing the information to the client, such as the provisions in the money-laundering and anti-terrorism legislation.

It is the Law Society’s 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.

Funding of P’s legal costs

Appointment as an ALR does not bring with it funding. You will therefore need a good understanding of the availability of legal aid in the CoP. In all cases other than s21A 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.

It is anticipated that before accepting appointment as an ALR you will need to make the following enquiries, which may well 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 to sign an application either for legal aid or legal help on a client’s behalf.

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:

is a party to those proceedings

wishes to be joined as a party to those proceedings

is contemplating issuing those proceedings.'

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 ensure 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. The Law Society expects 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.

Good practice in the CoP

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:

a) 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.

b) 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.

Applications under s21A Mental Capacity Act 2005

General

The Law Society anticipates 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.

Situations in which it may be inappropriate for an ALR to act

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. The Law Society expects that it will generally be unlikely for the court to appoint an ALR in cases concerning 16 - 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.

An ALR remaining instructed by 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, and there may often be advantages to this course of action as the ALR will be familiar with P’s circumstances and with the case more generally. Ultimately, the decision as to representation is one for the litigation friend.

More information

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

The Law Society operates 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 Law Society's Practice Advice Service can be contacted on 020 7320 5675 from 09:00 to 17:00 on weekdays.

Solicitors Regulation Authority Professional Ethics Helpline

Solicitors may obtain further help on matters relating to professional ethics from the Solicitors Regulation Authority's Professional Ethics Helpline (0370 606 2577) from 09:00 to 17:00 on weekdays.

Law Society publications

Assessment of Mental Capacity, 4th ed
Mental Capacity, 2nd ed
Practice Note: Meeting the Needs of Vulnerable Clients

Acknowledgements

This practice note has been prepared by the Law Society's 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.

SRA Principles

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.