Judge: Charles J
Citation:  EWHC 4289 (COP)
Summary: UF, aged 84, suffered from vascular dementia of a moderate level. She had lived at home alone for some years until, after her release from detention under s.2 MHA 1983, she was placed in a residential care home. She was the subject of a DOLS authorisation at the care home. Her daughter, AF, brought an application under s.21A MCA 2005, on the basis that she was her mother’s litigation friend, and on the basis that her mother was expressing in strong and, to her, worrying terms that she did not wish to be there. UF was, at that point, eligible for non-means-tested public funding.
UF’s other children, with whom it appears that AF had had long-standing difficulties, considered that her best interests were served by remaining at the care home. AF was appointed her mother’s litigation friend on an interim basis at a hearing before a District Judge; it appears on a largely pragmatic basis given that the Official Solicitor would not be able to accept any invitation to act within an appropriate time-frame for purposes of a s.21A application. In line with the approach that had been adopted by Charles J in Re HA  EWHC 1068 (COP), the standard authorisation was therefore terminated and the Court itself authorised any deprivation of liberty to which UF was subject pending the determination of the s.21A challenge. A problem then arose because the Legal Aid Agency, implementing an approach set down in Regulation 5(1)(g) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (which came into force on 1 April 2013), took the view that, as UF was no longer the subject of a standard authorisation, she was no longer entitled to non-means-tested public funding. When the impact of this problem became clear, the District Judge joined the LAA, through its Director of Casework and (it appears) transferred the matter to be heard by Charles J. The LAA applied to be discharged, which Charles J refused, but he did accede to their invitation to add the Ministry of Justice, as the Department responsible for the policy underlying the change in the Regulations. It became clear that, in fact, there had been no intention by changing the Regulations to address the decision in Re HA and to alter the legal aid regime in this specific regard.
Charles J therefore had two discrete issues to consider (1) whether AF should continue as litigation friend; and (2) precisely how the court should proceed in Re HA-type case.
Charles J noted that it appeared that the possibility of the RPR bringing an application under s.21A (as had happened in AB v A Local Authority and The Care Manager of BCH  EWHC 3151 (COP)) had not been investigated in any detail. As the RPR was in agreement with the relevant decisions reached, however, Charles J noted that it was very understandable why it was that AF had been advised to bring the application as UF’s litigation friend as she was and continued to be the person who disagreed with the decisions made at the best interests meetings.
Looked at in isolation, Charles J, it could be said that there might be some force in the argument put that there was no conflict between her and her mother in the sense that AF genuinely believed that what she was asserting was in her mother’s best interests. Charles J held that it was, though, necessary to consider Rule 140 of the COPR 2007 in the context of the overriding objective contained in Rule 3 and having regard to the circumstances of each case. At paragraphs 23ff, he continued:
“23. In general terms Mr O’Brien asserted that if a member of the family cannot act as a litigation friend that severely restricts the number of available people who might be able to act as a litigation friend and thereby cause problems in litigation of this type. I agree that members of a family, even if there is a family dispute concerning P’s best interests could, albeit I think rarely, appropriately act as P’s litigation friend in proceedings relating to that dispute. However, it seems to me that he or she would need to demonstrate that he or she can, as P’s litigation friend, take a balanced and even-handed approach to the relevant issues. That is a difficult task for a member of the family who is emotionally involved in the issues that are disputed within the family and it seems to me an impossible task for AF to carry out in this case. One only has to look at her statements to see that she is clearly wedded to a particular answer. You do not see within her statements a balanced approach or anything approaching it, such as: “This is the problem. These are the relevant factors for and against”. That is not a criticism. Rather it seems to me that it is a product of the result of there being long-standing family disputes and the existing clear divisions of opinion within the sibling group as to what will best promote UF’s best interests.
24. In the context of the disputed issue relating to where it is best for UF to live and thus how she should be supported there, to my mind, the history of dispute within the family and the issues relating to the funding of the necessary support mean that it is simply not possible for AF to conduct the proceedings fairly in the way in which that concept should be interpreted in Rule 140 or in a way, in which AF’s interests are not or cannot be said to be adverse to those of UF. Essentially this is because AF has an argument which she definitely wishes to run in advancing the best interests of her mother and this, coupled with the family history, means that AF cannot realistically consider the alternatives dispassionately. When you add in the need to construe the words of Rule 140 by reference to the overriding objective, it seems to me clear that this is a case in which AF should not continue to be the litigation friend of UF.”
Charles J therefore found that this was a last resort case, in the sense in which there was not somebody else suitable and willing to act as litigation friend. This, therefore, triggered the need for the Official Solicitor to act. Indeed, Charles J held (at paragraph 25) that this was “a case which cries out for somebody with the independence of the Official Solicitor to address both UF’s capacity to litigate and to make the relevant decisions” such that “the court should not take the course set by the District Judge of embarking on getting evidence on what is in effect a preliminary enquiry as to UF’s capacity to make decisions on where she should live and how she should be supported there until the Official Solicitor, or some other independent person, has addressed this task in an appropriate timescale, or in light of this judgment has refused to do so.” Charles J had not been in receipt of submissions as to whether the role of litigation friend should be discharged by the RPR or the Official Solicitor; this, therefore “was a matter for another day” and would probably require wider representation (it appears, though, from the concluding paragraph of the judgment that Charles J was of the view that the Official Solicitor should, if possible, discharge the role).
Court authorisation vs continuing standard authorisations?
By the time the issue of funding came on for final determination by Charles J, the position had become significantly clearer, and he was able to record it thus:
“31. […] [I]t has been made clear by [the Ministry of Justice and LAA] that if the Court was to exercise powers under s.21A, or indeed any other powers, to bring about the result that a standard authorisation remained in place no point would be taken that that was a contrivance or would be a ground for not granting legal aid on a non-means tested basis.
32. On the issue of contrivance I should record that the general position helpfully adopted by the Ministry of Justice and the LAA was that if applying the approach in Re HA the Court would have authorised a continuing deprivation of liberty of P (here UF) or such deprivation of liberty as there was arising from the implementation of the relevant placement plan, whilst the Court considers the issues under s.21A, the achievement of that result by the Court taking a different route that provides that a standard authorisation is in force would not be regarded as a contrivance.
33. That stance means that in all or the vast majority of applications under s. 21A that have and will come before the court it is open to the court, without being accused of being a party to any contrivance by the relevant funding authorities, to:
Charles J took the opportunity to express his views as to the powers of the CoP in relation to standard authorisations, thus:
“34. It seems to me that the combination of s. 21A (2)(b) and (3)(a) and (b), s. 47 and s. 48 and paragraph 61(2) of Schedule A1 of the MCA empowers the Court of Protection to vary an existing standard authorisation by extending (or shortening) it and that if and when it exercises that power it would normally be sensible for the court to give consideration to whether it should then exercise its powers under ss. (6) and (7) or give directions concerning its future exercise of those powers.”
At paragraph 35, Charles J expressed the view that the Court, unlike the supervisory body, was not limited to the period stated in the best interests assessment upon which it was based if that period was less than the maximum one year provided for in para 42(2)(b) of Schedule A1. This, he considered, was “the Court is exercising its discretion and powers, and so is in effect carrying out its own (interim) best interests assessment.” Whilst any Court-ordered variation extending or directing the extension of a standard authorisation pending the determination of a s.21A application would not normally extend beyond the possible maximum of one year, Charles J posed the question as to whether – but did not decide – the Court would have the power to extend the authorisation any further, or whether it would be necessary for it to grant a limited authorisation for purposes of ‘holding the ring’ pending the implementation of a further standard authorisation.
On the facts of UF’s case, and because the Re HA course had previously been adopted, there was no longer in place any standard authorisation. Charles J held (at paragraph 37) that the court had no power under s.21A to grant a new one. At paragraph 42, he was, however, able to approve a course of action which would circumvent this problem:
“a. The authorisation given by the District Judge will continue to an identified date.
b. If, having reassessed the position, they are so minded to do so the local authority as the supervisory body will give a standard authorisation from that date (see paragraph 52 of Schedule A1).
c. I invite them to do that for a short defined period, say 14 days or a similar period ending on a date that the courts are open.
d. Without further application or hearing, I will exercise my powers under s.21A to extend it for six months or to such other date as the court may from time to time direct. That will provide ample time to resolve the application.
e. At the same time, I will exercise my power to exclude the local authority from any liability arising from the grant of that standard authorisation.”
Charles J concluded with some observations upon the argument that “the Court could and should simply leave matters to a local authority to continue authorisation of a deprivation of liberty during the currency of s.21A proceedings. In this case, and others, this would mean that the relevant public authorities should take the responsibility for and the risks arising in respect of a challenged placement that involves or may involve a deprivation of liberty. That argument is founded on the duties imposed upon the relevant authorities both by Schedule A1 and 1A and their more general duties.” Whilst he did not rule out this course of action, in his view:
“44. […] having regard to the obligations and duties of the Court under s.21A and more generally under the MCA and its DOLS, it will normally be appropriate for the Court to satisfy itself as to and to take control of the interim position by exercising its powers under s. 21A and/or other provisions of the MCA. Not only does that accord with the Court’s role, if it is not done it would be likely to impose difficulties for the individuals and bodies involved in the proceedings and unnecessary responsibilities on assessors and decision makers that could render constructive consideration of P’s best interests more difficult.”
It is not clear from the transcript of the judgment whether Charles J’s attention was drawn to the dicta of Ward LJ in AVS v An NHS Foundation Trust & Anor  EWCA Civ 7. In that case, the brother of a patient with vCJD who had very strong views as to the medical treatment which should be offered to his brother sought to appeal (inter alia) against his removal as litigation friend by Sir Nicholas Wall P. The main basis for his removal had been attacks made on clinicians at the hospital at which the patient was being treated. At paragraph 29, Ward LJ noted the argument advanced on the brother’s behalf that “there is no suggestion that the brother has any interest adverse to that of the patient: he is doing what he genuinely believes the patient would want. The attack on the hospital may raise the temperature in the litigation but does not imperil its fairness. Leading counsel are instructed and the proceedings are in competent hands. I see the force of these arguments.” These dicta have subsequently been interpreted as supportive of the position of family members acting as litigation friends, even if they have very strong views as to what may be in the best interests of P which they do not express with the objectivity to be expected of a litigation friend such as the Official Solicitor. In WCC v AB and SB, a 2012 case, HHJ Cardinal appointed P’s aunt as litigation friend even though the main issue in the case was whether the care being given by P’s mother (i.e. her sister) was inadequate, and in the face of submissions from the local authority that her position would therefore be intolerable. HHJ Cardinal’s decision was driven, in considerable part, by the need to progress the case and the fact that the Official Solicitor (then operating his waiting list in welfare cases) would not be in a position to accept any invitation to act until after a substantial delay. He did, though, note that the commentary to Rule 140 of the Court of Protection Rules in Jordan’s Court of Protection Practice 2012 was “perhaps a little excessive” in stating that a relative or concerned person would be likely to have a conflict of interest in acting as P’s litigation friend.
These dicta must now be read in light of Charles J’s analysis of the position of family members, which represents the most comprehensive discussion of the competing factors. Whilst it would appear that he did not rule out entirely that a family member could act as P’s litigation friend, it is clear that he, for one, would look upon any such application with a considerable degree of caution, especially where there was any hint that the dispute went wider than between a family and a public authority to incorporate an aspect of family dissension.
We would, perhaps, though, emphasise if – as does not appear to have been disputed here – P is expressing to at least one person strong views that they do not wish to be in the care home or hospital in question, but none of those involved in the process (including the RPR) had any intention of bringing the matter to Court, then it would be a highly unsatisfactory result were P to have the door to a challenge shut by (for instance) the fact that the family member to whom the concerns were being expressed was not eligible for legal aid but unable to afford the cost of representation for bringing an application.
In such a case, then, whilst, in theory, the Official Solicitor could act as P’s litigation friend for purposes of bringing the application, it would in our experience be unlikely that he would do so, not least because the Official Solicitor – whilst the litigation friend of last resort – will not proceed in such a case unless he has security for the costs of legal representation of P.
The family member would then be faced with the choice of (1) acting as a litigant in person for purposes of bringing the proceedings (for which they would need permission); or (2) seeking to act as P’s litigation friend for purposes of bringing the proceedings (for which they would not need permission and would, in principle, be eligible for non-means tested legal aid). If the family member is not entitled to act as litigation friend, at least for purposes of getting the s.21A application off the ground, before stepping back in favour of – say – the RPR, an IMCA, or the Official Solicitor, how would P be put in the position of being enabled effectively to challenge the authorisation?
We note in this regard both the provisions of Article 5(4) ECHR (and the analogies to be drawn with the position of detained patients under the MHA 1983 post MH v United Kingdom) and the case of A v A Local Authority & Ors  EWHC 727 (COP). This case arose in a slightly different context, namely where the evidence at an interim hearing of a s.21A application being on its face clear that a deprivation of liberty was in A’s best interests, and submissions being made by the local authority to the effect that the proceedings being summarily determined at that stage. However, the then-President, Sir Nicholas Wall, authorised the instruction of a visitor to report under the provisions of MCA 2005 s49. In so doing, Sir Nicholas Wall P noted (at paragraph 15) that he was: “very conscious that the Act has laid down stringent conditions for the deprivation of liberty, and that the court cannot simply act as a rubber stamp, however beneficial the arrangements may appear to be for the individual concerned. In the instant case, A wishes to challenge the authorisation, which deprives him of his liberty. Parliament has decreed that he should be entitled to do so, and has created safeguards to protect those deprived of their liberty against arbitrary action.” (We would perhaps note A was one of the very few reported cases where the Official Solicitor has, in fact, brought CoP proceedings on behalf of P).
In the circumstances, it would be a concerning development were another AF not be able to bring proceedings in the name of another UF – so long as she made it clear that this was for purposes solely of getting the application off the ground and was willing to step back in favour of another litigation friend thereafter.
Finally, perhaps, we might note the apparent divergence in practice between the Court of Protection and civil courts as regards the appointment of litigation friends. The test under CPR r.21.4 is, materially, the same to that under COPR r.140. In Folks v Faizey  EWCA Civ 381, the Court of Appeal appeared to suggest that the process for determining whether a proposed individual should be appointed a litigation friend should be a fairly summary one. Keene LJ held, for instance, that, “in the situation where the proposed ‘patient’ and the litigation friend both consent to the appointment of the latter, where there is adequate evidence to support the application for an order appointing a litigation friend, and where there is no evidence suggesting that the application is anything but a bona fide one, the court should make the order sought” (paragraph 26). By contrast, Re UF would seem to suggest that the Court of Protection should take a considerably more hands-on approach to assessing the suitability of litigation friends.
It would appear that the offending parts of the 2013 Regulations represented, in essence, a legislative mistake, and it is fortunate that the concessions recorded on the face of the judgment remove what was, otherwise, a very troubling position.
Standard authorisations vs Court authorisations
Charles J, it is clear, remained of the view that the approach that he had adopted in Re HA – i.e. dispensing with the standard authorisation – was the appropriate course to have taken, and it is in many ways easy to see why. Whilst it is undoubtedly true that the Court would have power to extend a standard authorisation pending the determination of the application, it is – we suggest – reasonably clear from the face of the provisions of s.21A that this is not something that Parliament had in mind as the primary purpose of the powers granted the Court under that section. Moreover, and as Charles J noted, a jurisdictional problem poses itself immediately if there arises a need to extend the standard authorisation beyond the maximum one year period.
It is also clear that Charles J had in the back of his mind a potential problem that local authorities are beginning to wake up to, namely what would happen where a Court on a s.21A application finds that, in fact, the qualifying conditions are not made out. Does this mean that the local authority is therefore liable to be the subject of an action for declarations and/or damages from P on the basis that P had been unlawfully deprived of his liberty? Charles J floated this question at paragraph 10, and, whilst not deciding the point, seemed to take the view that, given the approach adopted to s.21A cases – i.e. that they represent the assessment by the CoP itself of the position rather than an appeal or review – there may, in principle, be the potential for damages to flow if the CoP reached the conclusion that the conditions were not made out at the time of the hearing (and, presumably, had either not been made out from the outset or that they had ceased to be satisfied at some identifiable point thereafter). By the Court transferring the responsibility for the authorisation of a deprivation of liberty onto itself – either by exercising its powers under s.21A to extend a standard authorisation or by exercising its powers under s.16 – the clock would be stopped for purposes of any claim for unlawful deprivation of liberty at least as at the point of the initial Court order.