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GN Law Media: When can a Litigation Friend be terminated?

A litigation friend acts for an incapacitated person (“P”) on their behalf during the course of proceedings in the Court of Protection. This means they will:

  • make decisions about the proceedings in P’s best interests
  • do everything they can to explain to P what’s happening in the case and find out their wishes and feelings
  • talk to P’s solicitor about what’s happening, get advice from them and give instructions to them in P’s best interests
  • pay any costs ordered by the court, if a costs order is directed towards them

It follows that a litigation friend must act with a balanced and objective approach to the issues being discussed in the proceedings. Under Court of Protection Rule 21.7, if the court decides that the litigation friend is incapable or unwilling to do so, it may terminate their appointment.

In applying Rule 21.7, it is plain that the court has a wide discretion to terminate a litigation friend’s appointment. To add to this flexibility, an application can be made by the parties at any point of the proceedings to request the court to exercise its discretion. 

This is precisely what happened in the recently reported case of R (Raqeeb) v Barts Health NHS Trust et al. The full judgment can be found here.

In this case, the High Court was considering two applications in relation to Ms Tafida Raqeeb (P), who was 5 years old at the time. Tafida, who was on life-sustaining treatment at the time, was being represented through her litigation friend, a relative (‘XX’).

A hearing was listed for the court to make two decisions:

  1. The judicial review of Barts Health NHS Trust’s refusal to permit Tafida to travel to Italy for continued life-sustaining treatment; and 
  2. An application by the Trust under the Children Act 1989 (pursuant to the inherent jurisdiction) for declarations that it was in Tafida’s best interests for her life-sustaining treatment to be withdrawn – a course of action that would lead inevitably to her death. 

However, only days before the commencement of the final hearing, a third application was made. On 2 September 2019, the Trust made an application seeking the termination of Tafida’s litigation friend pursuant to the above Rule 21.7. This application was resisted by Tafida’s litigation friend and her parents.

Judge MacDonald J listed an urgent hearing and heard the parties’ submissions. In considering the application, MacDonald J noted that the Trust’s application focused on:

a)     XX’s familial love for Tafida possibly interfering in her decision making; and

b)     XX’s Muslim religion or, more precisely, the existence of a well-known fatwa[1] of her Muslim religion. This fatwaindicated that it would be a grave sin for any Muslim to consent to the withdrawal of life-sustaining treatment, thereby also interfering in XX’s decision making. 

MacDonald J dismissed the application and made a costs order against the Trust. 

In making his decision, MacDonald J set out the principles by which he would judge whether XX was in fact carrying out her role as litigation friend effectively.  Akin to the Court of Protection Rules, a litigation friend must: 

(1)   Fairly and competently conduct proceedings 

MacDonald J emphasised the central role of legal advice in the discharge of the duties of a litigation friend. However, he also stated that a litigation friend who did not act on proper advice may (not ‘must’) be removed. 

This is because, while the litigation friend is required to act on legal advice, he or she must be able to objectively exercise some independent judgement on the legal advice received. 

(2)   Have no interest adverse to P 

The court gave examples of when the litigation friend would have an adverse interest, such as in the case of a social worker in a claim relating to services from the local authority employing them; or a relative acting as a litigation friend who has a financial interest in the outcome of the case.

However, the judge stressed that there was no principle that a family member couldn’t act as a litigation friend provided that “he or she can take a balanced and even-handed approach to the relevant issues”.

In view of the facts, MacDonald J decided that:

  • having a deep affection for the person was not an adverse interest;
  • having religious beliefs did not by itself disqualify a person acting as a litigation friend.

It was also relevant in this case that XX was only acting as litigation in relation to the judicial review proceedings.

In giving judgment, Macdonald J stated:

  1. Even if the court accepted that XX’s familial love and her religious beliefs where interfering with her decision making, there was no suggestion by her highly experienced legal team that she was acting inappropriately in light of the (privileged) advice they had provided. In other words: no harm, no foul.
  2. While he did not rule out the possibility of encountering a case in which religion could disqualify someone from acting as a litigation friend, he noted that “a decision that it could, would be unlawful in circumstances where religion is a protected characteristic under the equality legislation”.

Commentary

MacDonald J’s judgement contains a good summary of many essential rules that apply to litigation friends during proceedings, and will be a useful tool for future litigation friends seeking guidance on how to conduct themselves in the Court of Protection. 

Important points are also made in the judgement which shed light on how judges will evaluate whether these rules are being followed when a litigation friend’s suitability is in question, a fate which can particularly befall non-professional litigation friends which are actively opposing medical or social care advice on behalf of their loved ones.

Perhaps the main point to be taken from this judgement is the court’s insistence that a litigation friend’s personal and religious beliefs are, for the most part, irrelevant in terms of determining whether they are acting in the protected party’s best interests.  

Side-stepping this argument is, in my opinion, a sensible decision which could have otherwise opened the floodgates to all sorts of applications based on a litigation friend’s character, rather than their conduct. It should also act as a reminder that the court is concerned with questions of law and fact, and an impartial judge will not engage in suggestions that a person cannot be objective without factual evidence to support it.

Oscar Sotiriou Martinez
Court of Protection Dept. 

 

[1] A ruling on a point of Islamic law given by a recognized authority. In this case, the fatwa originated from the Islamic Counsel of Europe.

Posted on Thursday, 16th January 2020