Re PQ (Court Authorised Dol : Representation During Review Period
Summary
Poole J has examined in some detail the requirements of Article 5(4) ECHR in the context of court authorised deprivation of liberty. On the facts of the case before him, he held that Article 5(4) required that PQ, the subject of the authorisation, had to be represented throughout its length, by a litigation friend, an ALR or a rule 1.2 representative. He noted (at paragraph 57) that:
My conclusion that there would be no compliance with Art 5(4) without the appointment of a representative, be it a Litigation Friend, an ALR, or a r1.2 representative, is consistent with the domestic authorities, in particular the judgments of Munby J and Charles J set out above and the recent observations of Senior Judge Hilder in Bolton Council v KL (above). The likely need for representation for a P who is deprived of their liberty has been recognised not only in relation to the planned review of their deprivation of liberty but also during the whole of the review period. My conclusion also sits comfortably alongside the mandatory requirement for P to have a representative when deprived of their liberty in a hospital or care home under the DoLS regime. In the present case, without some form of independent representation, PQ’s Art 5 rights would be “theoretical and illusory” not “practical and effective”.
Poole J also had to grapple with what to do where there was (as is often the case) no person who can act as unpaid 1.2 representative, and no funding available for a paid representative. He did not consider that the option of using a Court of Protection visitor was viable, not least because the OPG advised the parties that they were not known to have been used for purposes of providing ongoing representation. Having examined the public funding situation (and found it distinctly lacking), he held on the facts of the case – which arose at the end of proceedings in which the Official Solicitor had been involved – that:
66. […]Taking all matters into consideration, having determined that PQ’s participation requires either the continued role of a Litigation Friend or the appointment of a representative, each being independent of the detaining authority, and there being no option to appoint a r1.2 representative, I shall direct that P shall continue to be a party and that the Official Solicitor shall continue to act as Litigation Friend until further order. Were an ALR appointed in place of the Official Solicitor acting as Litigation Friend, and were the duties of the ALR to include monitoring the arrangements during the review period and raising challenges and making applications as appropriate, then I would be satisfied that the appointment of an ALR would meet the requirements of Article 5 for the purposes of the review period. However, the Official Solicitor is already in place. I do not have evidence that the costs of maintaining the Official Solicitor as Litigation Friend will be disproportionate or indeed that they will be higher than the costs of appointing and then funding an ALR. I would consider authorising the appointment of a suitable ALR on application if assured that funding were secured and that it would be proportionate to make the appointment and to discharge the Official Solicitor as Litigation Friend but, for now at least, I shall direct that the Official Solicitor shall continue to act as Litigation Friend for PQ.
Poole J identified that the question of PQ’s continued participation was to be revisited at a review hearing, but that:
67. […] During the dormant period of the proceedings in the review period, the Official Solicitor as Litigation Friend should act as would an RPR under the DoLS scheme or as would a r1.2 representative. She must monitor the implementation of the Care Plan, provide to the Court updating information on the implementation of the Care Plan ahead of the review hearing as provided for in the order which the Court will make, and she must make an earlier application for review of the Court’s order if she considers that the Care Plan no longer serves the best interests of PQ and that an application is required. She may act through a solicitor for those purposes or she might perhaps engage another kind of professional representative to carry out those functions insofar as they do not involve making or responding to court applications. For example, a professional RPR might be suitable for the purpose of monitoring the care arrangements, care plans, and the deprivation of PQ’s liberty, reporting on them to the Official Solicitor.
Poole J expressed the hope (at paragraph 68):
that the LAA will reflect on the need for such services to be provided to secure PQ’s participation and the state’s compliance with Art 5. These functions are important and they are connected with ongoing proceedings. There is no alternative form of representation available. There may be a need for future oral hearings but that cannot be known in advance. The very purpose of representation would be to ensure that the need for an oral hearing during the review period was swiftly identified and appropriate applications to Court were made.
He noted that the outcome was:
69. […] unsatisfactory because, although important, the functions that the Official Solicitor will be performing during the review period could as well be performed by a r1.2 representative. I have not been provided with comparative costs but presume that the cost of a r1.2 representative would be less than the cost of retaining the services of the Official Solicitor and the solicitor or representative instructed on her behalf. The costs will fall on the LAA rather than the Local Authority. There is therefore an incentive on Local Authorities to refuse to fund r1.2 representatives if they know that the LAA will fund an ALR or the Official Solicitor. Charles J referred to these “budgetary battles” and sadly they are continuing eight years after his plea for a resolution. In the end, the state pays and the solution to which I have been compelled to arrive means that the state will probably pay more than it should pay. The Official Solicitor has not asked the Court to consider the wider ramifications for the allocation of limited resources, but the potential ramifications are plain for all to see. The solution, which lies in the hands of the state through central government and Local Authorities, is to fund a professional r1.2 representative. The failure to do so results in a solution that probably imposes a higher burden on the taxpayer. However, I cannot countenance the alternative of leaving PQ with no independent representation of any kind during the review period.
Anticipating that the LAA might withdraw funding, he made directions:
71. […] that, in the event of a decision by the LAA to refuse or to withdraw funding of the Official Solicitor and/or an ALR:
i) The matter shall be re-listed before the Court for further consideration of PQ’s participation.
ii) The LAA shall provide a full explanation to the Court of its decision not to fund PQ’s representation.
i
iii) The LAA shall be requested to secure ongoing funding for PQ’s representation by a solicitor instructed by the Official Solicitor or an appointed ALR pending further determination of the Court of the participation of PQ.
iv) The Local Authority shall review its decision not to fund a r1.2 representative and shall provide a written explanation to the Court in the event that it decides not to fund a representative even when, as a result, PQ in their care will have no independent representation.
v) The Secretary of State for Justice shall be joined as a party and required to provide evidence as to the provision of funds for a professional r1.2 representative for PQ.
Poole J did, however, emphasise that he did not rule out that:
72. […] in some cases, compliance with Art 5(4) may not require the appointment of a representative or litigation friend during a review period or at all.
Earlier in his judgment, he had amplified this point thus:
49. […] That is not to rule out circumstances in which the Court might be satisfied that there is no requirement for P to be a party, and so to have a Litigation Friend, or to be supported by an ALR or a r1.2 representative. In principle, having regard to the matters to be considered under COPR r1.2(1), the Court might discharge P without appointing a representative if satisfied that there is no prospect of any contentious matters arising in the review period and that there will be sufficient monitoring and sufficient opportunity for P to raise concerns or to make challenges pending the planned review. Such circumstances are likely to be rare but to the extent that Charles J held in Re JM that it could never be Art 5 compliant for P as a non-party to have no representative when deprived of their liberty, I respectfully disagree. However, in most cases the Court will not be satisfied that P can participate without either being a party with a Litigation Friend or ALR, or as proceeding as a non-party with an ALR or a r.1.2 representative.
Comment
Given that a litigation friend cannot be compelled to act, it would have been open to the Official Solicitor simply to decline to act on an ongoing basis (or decline to act absent a cast-iron guarantee as to her legal costs in the ‘dormant’ period, which the court clearly could not provide). It is to her credit that she did not seek to do.
Whilst Poole J made clear that he was determining the issues solely as they related to the circumstances of PQ’s case, the reality is that the observations that he made were of wider relevance, and his suggestion that there may be “some” cases in which there was no need for a rule 1.2 representative / ALR / litigation friend is, in reality, encompassing only rare circumstances. The continued (and it appears indefinite) non-appearance of LPS means that the issues considered by Poole J will remain live for the foreseeable future, together with the attendance complexity and additional expense required to jury-rig Article 5(4) compliance into the system.
