In July 2015, revised rules to the Court of Protection were published and the revisions included a new rule, Rule 3A, which introduced the concept of a “Rule 3A representative”.
A draft amendment to the rules has more recently been published, and it is will be Rule 1.2 which deals with the representative. Rule 1.2 comes into effect in June 2016, and is part of a case management pilot running for 6 months from June 2016.
A representative is likely to be required in uncontested welfare cases before the Court of Protection, particularly regarding P’s residence or care, and where a deprivation of liberty needs to be authorised.
We aim to set out here some helpful information about representatives for family members and advocates alike. Where we refer below to “P”, this means the incapacitated adult who is the subject of the Court of Protection proceedings.
Rule 1.2 sets out that the court must consider whether:
a) P should be joined as a party; or
b) P’s participation should be secured by the appointment of an accredited legal representative to represent P in the proceedings and to discharge such other functions as the court may direct; or
c) P’s participation should be secured by the appointment of a representative whose function shall be to provide the court with information as to the matters set out in s.4(6) of the Mental Capacity Act 2005, and to discharge such other functions at the court may direct. In such a case, P will not be a party to the proceedings.
If a case is fairly straightforward, in that, for example, issues about where P should live or be cared for, are agreed between the local authority and P’s family, and P him/herself is content with the placement (albeit he/she cannot validly consent to it), the court may decide that it does not need to make P a party to the proceedings. Instead, the court may decide to appoint a representative.
If P has a family member or friend who is considered to be appropriate to act as his/her representative, the family member or friend is likely to be appointed as the representative.
In some situations the court may decide it is not appropriate to appoint a family member. This could be for various reasons, but as an example it could be that P’s family, albeit all agreed about P’s placement and care, do not have good relations with each other. This could make it difficult if one of the family member’s is the representative, and has to consult other family members and report back on their behalf to the court. Another example may be if the family member or friend has too many other commitments and could not take on the role.
In such a situation, or if there are no family members or friends of P who can take on the role, then an advocate should be appointed to act as P’s representative.
If you already are in contact with the local authority, we would suggest asking them if they consider P’s case to be one where a representative would be suitable. If so, ask if they agree to you being appointed as the representative, and if they can ask the court to appoint you when they make their application to the court.
Alternatively you can ask the court yourself if you can be appointed as P’s representative. If proceedings have already started, you can ask the court to appoint you by filing a COP9 Application Form. You may need to provide supporting information by way of a COP24 Witness Statement. Make sure to send a copy of your application and any other documents you file with the court to all of the parties in the case.
It will ultimately by up to the court to decide whether P does not need to be a party, and whether to appoint you as his/her representative.
The Mental Capacity Act 2005 sets out at s.4(6) what a person must consider when making a best interests decision on behalf of P. It applies therefore to a person who lacks capacity to make a certain decision (e.g. about his/her residence), and for whom a best interests decision must be made on their behalf.
The person or public body making the decision on P’s behalf must consider, so far as is reasonably ascertainable:
a) P’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
b) The beliefs and values that would be likely to influence his decision if he had capacity, and
c) The other factors that he would be likely to consider if he were able to do so.
It is your role as P’s representative to provide the court with this information. This will mean, in most cases, preparing a COP24 Witness Statement (link above) addressing these points. You should try and tell the court as much of this information as possible, either from your own knowledge of P, and/or from speaking with others who know P. You should also meet with P and speak to him/her about the issues in the case, and find out what their wishes are, as even if P lacks capacity he/she may be able to express a wish or a feeling about the decision that is to be made. You could also speak with people who live with or care for P, to try and find out if P’s wishes and feelings can be ascertained from his/her behaviours, or whether P generally seems to be content with his/her care arrangements. They might also be able to tell you how the care plan works for P in practice.
Where relevant you should also read P’s care plan and highlight any issues with this to the court.
The court may also direct you to carry out other specific functions; this will be particular to P’s case.
As the Judge may not meet with P, and is unlikely to attend at P’s place of residence, the information you can provide about P’s wishes and feelings, and feedback from his/her place of residence is very important in helping the court to make its decision, and in ensuring P’s participation in the case.
If there are oral hearings at court, you may need to attend these. Sometimes hearings are only “on the papers”, where the Judge will consider all of the documents filed and make an order without the parties having to attend court.
As P’s representative, you may have an ongoing role. If, for example, P is deprived of his/her liberty in a supported living placement, the court will need to review that deprivation at least once a year. Each year therefore you will need to report to the court as above.