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GN Law Media: What rights do families have in s21A proceedings in the Court of Protection?

What are s.21A proceedings?

Section 21A proceedings are cases where there is a standard authorisation (restricting a persons liberty), under the Deprivation of Liberty Safeguards (DOLS), in place in relation to a person who is deemed to lack capacity to make decisions about where they should live and what care to receive. The person who lacks capacity is known as “P” in the proceedings. Section 21A Mental Capacity Act 2005 proceedings take place when P who is deprived of their liberty at a care home has expressed objections to their placement.

It is clear from the case of Re AJ [2015] EWCOP 5 that P’s Relevant (paid) Representative, s39D IMCA’s and local authorities all have positive obligations to assist P to challenge their deprivation of liberty in the court where appropriate and necessary. It was also established in that case that when P is clearly and consistently objecting to their care arrangement, an application to the Court of Protection ought to be made.

The Court of Protection is a court of England and Wales. The Court has a number of functions:

  • It decides whether or not P can make their own decisions.  If they cannot make their own decisions, due to a mental illness, then P lacks capacity.   
  • If a person cannot make their own decisions, the court will make the decisions for them in their best interests.     
  • The Court of Protection cannot make a decision on behalf of someone who has capacity to make that decision for themselves.

The court looks at all the evidence in reaching their decisions.  This includes considering P’s own wishes, the views of other relevant people, such those of family members, medical and social services records and sometimes independent expert opinions.

How can P’s relatives be involved in the proceedings?

Once the application is submitted, the Judge will need to decide who should be a party to the proceedings, whether P needs to have a litigation friend to help them in the proceedings, and who should be the litigation friend for P.

Family members of P, for example P’s siblings, descendants or parents can ask permission to be joined as a party to the proceedings by filing a COP5 form with the court. If a family member is joined as a party:

  1. They will have access to all of the documents filed in the proceedings
  2. They may be directed by the court to file evidence setting out their views
  3. If the parties seek to agree an order without attending court, their agreement will be sought before that order is filed with the court
  4. If an expert is instructed, they can be involved in that instruction
  5. They will have to attend all the hearings in the case.

However, it should be noted that if a family member of P behaves unreasonably in the proceedings such as to unnecessarily increase the costs of the other parties or waste court time, they may be subject to costs orders (i.e. ordered to pay another party’s costs). This is rare and their behaviour would have to be significantly unreasonable, but it is possible.

If a relative of P wishes to join the s.21A proceedings as a party, they will be asked to provide their own views in relation to P’s best interests regarding their residence and care.

The applicant in the proceedings will usually be P, by their litigation friend (the Official Solicitor or someone else) and the relevant local authority will usually be invited to join the proceedings as the respondent. If a family member of P wishes to join the proceedings as a party, they will be the second respondent in the case.

Otherwise, if P’s family members do not wish to formally join the proceedings as a party, they could still be interested parties in the proceedings and permission could be sought for any information in relation to the proceedings to be shared with P’s family. P’s relatives could still file evidence with the court setting out their views. The only difference is they would not be as actively involved. For example, their agreement would not be necessary for an order to be filed with the court, and they may not see all of the documents in the case.

Can a family member act as P’s litigation friend?

In most cases where a P is subject to a standard authorisation, they are also found to lack capacity to instruct a solicitor themselves to conduct the Court of Protection proceedings. As such, they will need to have a litigation friend who will instruct solicitors on their behalf. P’s Relevant Representative (whether a paid representative or sometimes a family member) usually takes the role of the litigation friend in the first instance until proceedings are issued. However, the role of Paid Representatives, who are usually independent advocates, does not extend to continuing to provide instructions on behalf of P once the proceedings are issued and as such another person would need to take on that role for the remainder of the proceedings.

A relative of P can take on the role of P’s litigation friend on some occasions. The function of a litigation friend is to supplement P’s want of capacity and judgement and take all measures necessary within the proceedings for P’s benefit. A family member of P would have a duty as litigation friend to fairly and competently conduct the proceedings on behalf of P. This includes providing instructions at each stage of the proceedings, in response to evidence filed by other parties, in relation to the filing of evidence on behalf of P, and in relation to position statements and draft orders.

Most importantly, the person acting as P’s litigation friend would need to ensure that they are acting in P’s best interests at all times.  As part of this role, they will be expected to try to elicit P’s wishes and feelings in relation to the relevant aspects of  their case (in practice this would be done by the solicitors instructed to represent P to ascertain their wishes and feelings). It is very important that if a family member of P were to take on the role of P’s litigation friend, they would need to set their own views aside and consider all the options objectively taking into consideration P’s wishes and feelings. For example, if P’s family member acting as a litigation friend, holds a view from the beginning of the proceedings that it is in P’s best interests to remain in their current placement but P has expressed a wish to move somewhere else, P’s litigation friend would need to take an objective view in relation to alternative residence options. If at any point it became apparent that there is a conflict between the family member’s views or interests, and P interests, or if it appeared that the family member is not acting in P’s best interests in some way, then the court may appoint someone else to act as P’s litigation friend going forward.

It is not possible for a family member to be a separate party to the proceedings and also act as P’s litigation friend. If a family member wishes to act as P litigation friend, they would need to act impartially and neutrally in P’s best interests.

If there are no relatives of P that are able to take on the role of the litigation friend, the Official Solicitor is usually invited to act as the litigation friend for P. The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves in court proceedings and no other suitable person or agency is able or willing to act. The Official Solicitor has Case Managers who work with her and assist her to run her cases.  The Official Solicitor will usually instruct a firm of solicitors to act on her behalf in welfare cases in the Court of Protection.

If you have any questions in relation to relative rights in Court of Protection proceedings, you can contact a member of our Court of Protection team on 020 8492 2290.

Lillian Efstathiou, Solicitor

Posted on Tuesday, 19th October 2021