Mental Capacity Case

Barts NHS Foundation Trust v Begum and Raqeeb, and Raqeeb (by her children's guardian)

MacDonald J


This case concerned an application by the NHS Trust to terminate the appointment of Tafida Raqeeb's litigation friend days before the final hearing of the judicial review proceedings ([2019] EWHC 2531 (Admin) and [2019] EWHC 2530 (Fam)). The issue in those substantive proceedings was whether the Trust's decision not to permit Tafida to be transferred to the Gaslini hospital in Italy was unlawful. The Trust argued that XX should be removed as litigation friend because as a family member she loved Tafida, held – in the context of the tenets of her strong Islamic faith – a clear and settled view of where Tafida's best interests lay, and had lodged a position statement in the Children Act proceedings opposing the withdrawal of life-sustaining treatment.

MacDonald J dismissed the application and made a costs order against the Trust. The court stressed that the litigation friend was only appointed to act in the judicial review proceedings, not the Children Act / best interests proceedings, where Tafida was represented by the Children's Guardian. The application therefore had to be determined in that context. Akin to the Court of Protection Rules, a litigation friend must (1) be able fairly and competently to conduct proceedings and (2) have no interest adverse to that of the person.

(1) Fairly and competently conduct proceedings

His Lordship analysed the authorities and emphasised the central role of legal advice in the discharge of the duties. A litigation friend who did not act on proper advice may (not must) be removed. Furthermore, whilst the litigation friend is required to act on legal advice, he or she must be able to exercise some independent judgment on the legal advice received. In doing this, the litigation friend must approach the litigation with objectivity:

26 … Thus, in conducting these proceedings fairly and competently XX is required to take all measures she sees fit for the benefit of Tafida, supplementing the want of capacity and judgement of Tafida, her function being to guard or safeguard the interests of the Tafida for the purposes of the litigation. The discharge of that duty involves the assumption by XX of the obligation to acquaint herself with the nature of the action and, under proper legal advice and with the necessary objectivity, to take all due steps to further the interests of Tafida.

(2) No adverse interest

Obvious examples included a social worker acting as litigation friend in a claim relating to the provision of services by a local authority employing that social worker. Or a relative with a financial interest in the outcome of a case. But having a deep affection for the person was not an adverse interest provided the litigation friend can "take a balanced and even-handed approach to the relevant issues."

Crucially, in the context of the litigation friend's role in the judicial review proceedings, XX's views about the religious probity of withdrawing treatment from Tafida were not relevant. The question for the court was one of law and fact, namely whether the Trust's decision not to permit her to go to Italy for treatment was contrary to her EU rights.

His Lordship noted:

37… a solicitor who is acting for child or protected party is likely under an obligation to inform the court of any concern that the litigation friend is not acting properly. In such circumstances, the court must be entitled to rely on the assessment of the legal team when considering the extent to which it can be established that the litigation friend has or is pursuing an interest adverse to that of the child.

In this case there was nothing from her legal team to suggest that XX was acting otherwise. This decision thus provides a useful summary of some of the main authorities on issues which bear upon the role of litigation friend in Court of Protection proceedings.