By Laura Stevenson – trainee solicitor Peter Edwards Law
Please email any comments you may have to Laura at – firstname.lastname@example.org
What is a litigation friend?
A litigation friend is required to ‘direct legal proceedings’ on behalf of P where P is:
– an adult who lacks the mental capacity to manage their own court case either with or without a solicitor
Therefore they must:
– make decisions in P’s best interests
– do everything they can to tell them what is happening in the case and find out their wishes and feelings
– talk to their solicitor about what is happening, get advice from them and give instructions to them in P’s best interests:
The court case can be any of the following:
– a civil case, except a tribunal
– a family case
– a Court of Protection case
The litigation friend assists the person by dealing with the legal case. P remains the solicitor’s client, but the instructions regarding the conduct of the proceedings are given by the litigation friend.
So the first question to ask when someone lacks capacity to conduct legal proceedings is “who can be litigation friend?”
The government’s advice (www.gov.uk) is the following;
“The court can appoint anyone to be a litigation friend, for example:
– a parent or guardian
– a family member or friend
– a solicitor
– a professional advocate, e.g. an Independent Mental Capacity Advocate (IMCA)
– a Court of Protection deputy
– someone who has a lasting or enduring power of attorney
Suitability of litigation friend
It is for the Court to appoint a litigation friend. The Court therefore has to check that a person is suitable using Form N235. The Judge will make sure:
– there is no conflict of interests
– that the proposed litigation friend can make decisions about the case in a fair and competent way.
Is there a risk that the role of the IMCA conflicts with that of the litigation friend?
IMCAs are a significant safeguard for people who lack capacity to make some important decisions for themselves.
The IMCA role is to ‘support and represent’ the person in the decision-making process’. Essentially they make sure that the Mental Capacity Act 2005 is being followed. The key role of the IMCA is to ensure that the wishes and feelings of P form the starting point in the decision making process. IMCAs should never be decision makers.
The “Making decisions, The IMCA service, OPG606” published by the Office of the Public Guardian (OPG) provides the following information about what the role of an IMCA entails;
“1. Ascertaining the views, feelings, wishes, beliefs and values of the person, using whichever communication method is preferred by the client and ensuring that those views are communicated to, and considered by, the decision-maker.
2. Non-instructed advocacy. Asking questions on behalf of the person and representing them. Making sure that the person’s rights are upheld and that they are kept involved and at the centre of the decision-making process.
3. Investigating the circumstances. Gathering and evaluating information from relevant professionals and people who know the person well. Carrying out any necessary research pertaining to the decision.
4. Auditing the decision-making process. Checking that the decision-maker is acting in accordance with the Act and that the decision is in the person’s best interests. Challenging the decision if necessary.
The IMCA will make sure that the views, feelings, values and wishes of the person and any other relevant information such as religious and cultural factors are made known to the decision-maker.”
The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 provides the following functions of an IMCA;
6. (3) The IMCA must determine in all the circumstances how best to represent and support P.
(4) In particular, the IMCA must—
(a) verify that the instructions were issued by an authorised person;
(b) to the extent that it is practicable and appropriate to do so—
(i) interview P, and
(ii) examine the records relevant to P to which the IMCA has access under section 35(6) of the Act;
(c) to the extent that it is practicable and appropriate to do so, consult—
(i) persons engaged in providing care or treatment for P in a professional capacity or for remuneration, and
(ii) other persons who may be in a position to comment on P’s wishes, feelings, beliefs or values; and
(d) take all practicable steps to obtain such other information about P, or the act or decision that is proposed in relation to P, as the IMCA considers necessary.
(5) The IMCA must evaluate all the information he has obtained for the purpose of—
(a) ascertaining the extent of the support provided to P to enable him to participate in making any decision about the matter in relation to which the IMCA has been instructed;
(b) ascertaining what P’s wishes and feelings would be likely to be, and the beliefs and values that would be likely to influence P, if he had capacity in relation to the proposed act or decision;
(c) ascertaining what alternative courses of action are available in relation to P;
(d) where medical treatment is proposed for P, ascertaining whether he would be likely to benefit from a further medical opinion.”
If we compare this to the role of the litigation friend as per the government website;
“You must ‘direct the proceedings’ on behalf of the other person if you’re their litigation friend. This means you’ll:
– make decisions in their best interests
– do everything you can to tell them what’s happening in the case and find out their wishes and feelings
– talk to their solicitor about what’s happening, get advice from them and give instructions to them in the other person’s best interests
– pay any costs ordered by the court”
Clearly there is potential for a conflict but read on. Rule 140 of the Court of Protection rules states:
A person may act as a litigation friend on behalf of a person if he:
– can fairly and competently conduct proceedings on behalf of that person; and
– has no interests adverse to those of that person.
There is nothing in Rule 140 to prevent IMCA’s from acting as litigation friends.
The IMCA must have attempted all available informal options to relay P’s wishes and feelings and achieve an outcome in P’s best interests before considering making an application to the court. Making an application to the Court of Protection is the next necessary step in fulfilling their role, moreover, IMCAs are particularly well placed to be the litigation friend to ascertain matters such as P’s wishes and feelings, as they will be familiar with the person and will have gathered their wishes and feelings in their IMCA role.
There is a possibility, however, that during the course of acting as litigation friend in the Court of Protection, IMCAs might experience some ‘tension’ between the roles. For example, during the course of an appeal against deprivation of liberty authorisation by way of a s21a challenge, the IMCA, acting as litigation friend, would perhaps have instructed a solicitor to lodge the appeal because P is objecting.
They may have some qualms about feeling that it is in P’s best interests to remain at a care home when P has expressed to them a wish to (say) return to their home. The IMCA may feel that in instructing a solicitor to appeal on P’s behalf and in support of their wishes and feelings, this does not sit well with the fact that the IMCA might feel that there is little prospect of success. They would want to maintain a relationship with P as their advocate following the proceedings.
However, in saying this, the IMCA’s role is to “make sure that the views, feelings, values and wishes of the person and any other relevant information such as religious and cultural factors are made known to the decision-maker.” As the Judge is the decision maker, as long as they have communicated this to the Judge then they will be fulfilling their role as IMCA. The IMCA will not be the ‘decision maker’ in the outcome of the court process, the Judge is, so can rest assured that they will not be in conflict with their IMCA role when providing instructions to the solicitor. The issue arises from the fact that in giving instructions as to what is in P’s ‘best interests’, this can be inconsistent with the wishes and feelings P has expressed to them.
Acting as litigation friend may make the IMCA feel that they are fully fulfilling the obligations of their IMCA role by supporting P to not only bring an application to court but also by promoting their participation throughout the proceedings. Indeed, one way in which the IMCA can be a particularly valuable litigation friend is in deciding whether it is in P’s best interests to meet with the Judge/attend court hearings. This part of the court process can be important in ensuring that P has had the chance to participate and is at the ‘centre’ of proceedings. The IMCA is best placed to know whether meeting the Judge will be in P’s best interests given their relationship with them.
Whilst it may be that the IMCA feels some tension with this aspect of the role of litigation friend, the experience, knowledge and independence they have as an IMCA can also be invaluable as it allows P to participate in the proceedings in a way that they cannot with other litigation friends.
What about the 39D IMCA?
There are occasions when an IMCA either performs the function of Relevant Persons Representative (RPR) or is appointed under s. 39D to advise an RPR where a person has an unpaid representative (RPR). This would often be a family member. The s.39 D IMCA must be instructed if:
– The unpaid RPR asks the supervisory body for the support of a 39D IMCA.
– They ask the supervisory body for the support of a 39D IMCA.
– The supervisory body believes that the person or their representative would benefit from the support of a 39D IMCA.
Re AJ (DoLS) 2015 EWCOP 5 Baker J noted that Article 5(4) gives P an unqualified right of access to the court, there is no place for a best interests decision about the exercise of that right. He therefore decided that P’s RPR or IMCA was under a duty to assist P in bringing an application to the Court of Protection to challenge the Standard Authorisation. Furthermore where P’s RPR or IMCA failed to do so, the Supervisory Authority had an obligation to bring an application to ensure P’s Article 5(4) rights were met.
In the case of Re RD and others (Duties and Powers of Relevant Person’s Representatives and Section 39D IMCAS)  EWCOP 49 Baker J gave guidance on the roles of the RPR and IMCA. Amongst other comments he stated that the role of the IMCA appointed under s.39D is to take such steps as are practicable to help P and the RPR understand matters relating to the authorisation set out in s.39D(7)(a) to (e), and the rights to apply to the Court of Protection and for a Part 8 review, and how to exercise those rights. Where it appears to the IMCA that P or the RPR wishes to exercise the right, the IMCA must take all practical steps to assist them to do so. In considering P’s apparent wishes, the IMCA should follow the guidance set out above so far as relevant.
Avoiding conflict of interests
I would suggest that there are three alternatives where there is a risk of conflict;
1. Where an IMCA (including a s.39D IMCA) has fulfilled the role of litigation friend but has taken a different view to P’s wishes and feelings in forming a best interest’s opinion then, in order to reduce any possibility of tension between the two roles, I would submit that a different person should be appointed to fulfil the role of IMCA (in whatever form) under a DoLS standard authorisation.
2. Where the IMCA feels it is not appropriate or they are not allowed to act as litigation friend.
The Official Solicitor can also act as litigation friend. The Office of the Official Solicitor is a part of the Ministry of Justice. The Official Solicitor is the litigation friend ‘of last resort’ and so will only act if there is confirmation that there is no one else willing and suitable to act. The Official Solicitor is therefore an option if the IMCA is not willing to act as litigation friend and there is nobody else suitable.
To facilitate the right to appeal where P is objecting, in my experience the IMCA will instruct us to commence proceedings but will request that the Court appoint someone else as litigation friend. This may well be the official solicitor.
3. Proceeding without a litigation friend. The possible conflict / tension in the role could perhaps be avoided if the solicitor is appointed as an Accredited Legal Representative by the Court of Protection (ALR). Rule 6 defines an ALR as “a legal representative authorised pursuant to a scheme of accreditation approved by the President to represent persons meeting the definition of “P” in this rule in proceedings before the court”.
The 39 Essex Street ‘Mental Capacity Report: Practice and Procedure, November 2017, Issue 81 states that there seems to be “no reason why an ALR should not be proactive in, for example, a Section 21A application where a solicitor who is a member of the ALR scheme has been approached either by P or an RPR. In such a case the solicitor may consider filing a witness statement confirming their accreditation, describing their interaction with P and explaining why this could be a suitable case for P to participate through the appointment of an ALR rather than via a litigation friend.”
The role of the ALR has only recently been introduced in 2017 and so it will be interesting to see the case law develop relating to their involvement.
What if the IMCA is not the litigation friend?
If the IMCA does not become litigation friend then whilst they avoid the possibility of feeling conflicted in their roles, however, this can also cause some other problems as obviously they will not have the same involvement as they would as litigation friend.
It is probable that they will not be a party to proceedings so the IMCA will not have access to the information and documents filed within the proceedings.
This can mean that the IMCA is starved of vital information about the information in the proceedings which would mean that they are not able to support P in those proceedings same way that they would be able to as litigation friend. The IMCA may feel as though they are missing out on the opportunity to help P communicate their wishes and feelings to the decision maker (the Judge), which is the key role of the IMCA.
This can be avoided if the advocates remember to build into orders the ability to share information with the IMCA
The IMCA should make the following decisions;
1. Do I need to bring an application to the Court to fulfil my responsibility to P?
2. Can I be litigation friend? (Do I have the contract, funding etc.?)
3. If I can be litigation friend, should I be litigation friend?
a) Yes, I can be litigation friend and I feel in doing so I can help P to fully participate in the proceedings.
b) No, I feel that there will be conflict in my role and I do not feel comfortable in performing the litigation friend role. An alternative litigation friend/ ALR will have to fulfil the role. (See heading ‘avoiding conflict’)