What is a Rule 1.2 Representative and why are they important?
The role of a Rule 1.2 Representative is often undertaken by Independent Advocates, or by a friend or family member of the individual concerned. A Rule 1.2 Representative is appointed when the Court of Protection authorises a deprivation of liberty in the community (such as a domestic home or supported living setting) as the individual concerned lacks capacity to consent to the arrangements in place. The role involves regular contact with the individual, assessing the restrictions in place, upholding the individual’s rights, and ultimately formulating an assessment as to whether the care and support plan in accordance with which the deprivation is authorised is in the individual's best interests.
Re PQ [2024]:
The Court of Protection has recently reviewed the significance of ensuring that the protected party has ongoing, independent representation during the review period when their liberty is deprived, but where there are no active legal proceedings ongoing.
The issue arose in the case of Newcastle City Council v PQ (by her litigation friend, the Official Solicitor). Following this case, it is crucial that any representatives involved in ‘community DOL’ proceedings are aware of the issues discussed and conclusions reached for future guidance.
Background of the case:
The individual at the centre of the case, PQ had a diagnosis of learning disability. The applicant local authority issued proceedings in the Court of Protection owing to PQ’s history of sexual exploitation and ongoing concerns about contact with her boyfriend at the time.
Proceedings were ongoing for a number of years with the court having made final declarations earlier this year that PQ lacked capacity to make decisions about her residence, care, use of the internet and social media, and contact with others online. The court also authorised the deprivation of PQ’s liberty at a specific address in accordance with her current care and support plan, subject to a review period between which a final order was agreed and the planned review date.
However, HHJ Smith expressed concerns in respect of how PQ would be independently represented during the review period, and thus, how PQ’s participation would be supported on the basis that no family member was willing to act as Rule 1.2 rep and the local authority had declined to fund an Independent Advocate to act. She also noted:
“It is not clear that the Legal Aid Agency (LAA) will continue to fund the Official Solicitor to act as PQ's litigation friend or, alternatively, an Accredited Legal Representative (ALR) Without that funding the Official Solicitor or an ALR will not have the necessary security for their costs to allow them to act for PQ.
The issue for determination by the court was therefore 1) whether PQ’s participation during the period of review required her to be represented (by way of a litigation friend, an ALR, or a Rule 1.2 representative in order to be compliant with Article 5 ECHR, 2) what form of participation the court would require given the options available, and 3) what steps should be taken should the Legal Aid Agency decline to fund representation by way of a litigation friend or ALR when proceedings are dormant.
Given the significance of the issues, the case was reallocated to a Tier 3 Judge, namely Mr Justice Poole who addressed each issue as follows:
Need for representation
- The court emphasised that PQ needed some form of independent representation during the review period (which could be for up to 12 months) to protect her rights under Article 5(4) of the ECHR. This ensures that any significant changes in her situation are addressed promptly and brought before the court if necessary. Effectively, without appropriate representation, PQ would be “highly unlikely to be able by [herself] to monitor [her] own care arrangements” and decide whether to return the matter to court.
- The court also highlighted the difference in contrast to the DoLS regime, under which a Relevant Person Representative (RPR) must be appointed for an individual deprived of their liberty in a hospital or a care home setting at all times (even after a s21A challenge to a deprivation of this type has been determined by the court).
Funding and participation
- The court discussed different ways PQ could be represented, but there were concerns about who would fund this representation. If legal aid were to be withdrawn, there was a risk that PQ could lose her representation (namely her litigation friend, the Official Solicitor who requires security for costs at all times), which would be problematic.
- Similar issues would arise in relation to continuity of public funding if the court were to seek an ALR to represent P in the alternative, and concerns were also raised that PQ’s arrangements were such that she was not eligible for non-means tested legal aid (meaning that funding could be withdrawn separately on the grounds of her means).
Court’s role
- The court acknowledged it does not have the power to force public bodies (such as the Legal Aid Agency or the Local Authority) to pay for PQ's representation, and whilst it may seek to persuade public authorities to act in a way that would be in an individual’s best interests, it cannot pressure a public body to allocate resources in a particular way.
- Similarly, it would not be appropriate for the court to take the role that a Rule 1.2 representative might otherwise fulfil (for example by monthly review hearings) as this would be a disproportionate and ineffective use of court time.
Provisional enquiries were made of the Legal Aid Agency by PQ’s solicitor, who confirmed that whilst it would not withdraw funding, PQ’s funding could not apply indefinitely where there were no substantive legal issues to be resolved during a period of review.
Implications:
Given the lack of available, alternative options for securing PQ’s representation, the court directed that PQ would be retained as a party and that the Official Solicitor should continue act as her litigation friend until further order. In effect, this meant that the Official Solicitor would have to continue to instruct a solicitor to act for PQ during the dormant review period who would effectively carry out the role of a Rule 1.2 Representative in the absence of a family member or professional Independent Advocate, with the caveat that the solicitor could engage another professional to carry out these functions on their behalf.
The outcome of the case was described as “unsatisfactory” by the Judge, who speculated that the costs of a Rule 1.2 Representative would likely be less than that of a solicitor instructed by the Official Solicitor or an ALR and highlighted that the costs burden effectively fell on the Legal Aid Agency rather than the local authority.
Wider reaching consequences were also noted with the Judge highlighting that his decision effectively creates an “incentive” on local authorities to refuse to fund a professional Rule 1.2 Representative (knowing that the Legal Aid Agency will instead be forced to fund ongoing representation by way of an ALR or solicitor instructed by the Official Solicitor in order to ensure compliance with Article 5) and a higher burden on the taxpayer due to a “budgetary battle” between publicly funded bodies.
Mr Justice Poole therefore also directed that a copy of his judgment “be sent to the Legal Aid Agency and Secretary of State for Justice, with a request that they consider the implications for the provision and funding of representatives who lack mental capacity to make decisions about their residence and care and who are deprived of their liberty in the community”.
By Emily Ireland, graduate paralegal
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