Autonomy and the role of the Official Solicitor – whose interests are really being represented?

10 October 2012 by Rosalind English

R.P. and others v United Kingdom (9 October 2012) – read judgment

The day before our seminar on the Court of Protection and the right to autonomy, the Strasbourg Court has ruled on a closely related issue in a fascinating challenge to the role of the Official Solicitor in making decisions on behalf of individuals who are for one reason or another unable to act for themselves.

The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. This particular case involved child care proceedings, but the question before the Court was the vital one that arises out of any situation where an individual is deemed to have lost capacity to represent his or her own interests in court. What the parties asked the Court to consider was whether

the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court.

Background Facts

The facts can be stated very briefly. The applicant RP, who has a significant learning disability, complained  about the decision to take her daughter into local authority care and to place her for adoption. Relying on Article 6 (1) (right of access to court), the applicants (RP’s family) complained in particular about the appointment of the Official Solicitor to act for RP in the proceedings concerning her daughter, alleging in particular that the implications of that appointment – which RP had been unable to challenge – had not been fully explained to her. Further relying on Article 8 (right to respect for private and family life), RP also complained that she had not had the opportunity to challenge the decision to remove her daughter from her care.

Factors leading to the social workers’ decision to proceed with the placement order in respect of her child were her apparent “racism”, her “over-preoccupation” with her own health concerns, and “that she spoke very negatively about the local authority’s professionals” –

Her attitude towards social workers was also noted to be aggressive, uncooperative and occasionally violent.

RP made various attempts to apply to discharge the placement order under the Adoption and  Children  Act 2002 in respect of her child, and it is noteworthy that in one of them the  judge noted that “the mother has a sufficient grasp of what she wants to achieve to put forward her case with assistance so that imposing upon her a litigation friend would be quite inappropriate”.

Before the Strasbourg Court she invoked Article 6 because the decision on whether or nor she had litigation capacity was not fully tested by a court and she did not have a full opportunity to challenge that decision. In particular, she submitted that once her own solicitor had received the local authority’s psychologist’s report, she should have either advised her to seek separate legal advice or advised R.P.  that she could challenge the report, and that public funding should have been made available to enable her to pursue either of these options. In reality, however, no-one explained to R.P. the implications of the Official Solicitor being instructed or that she could challenge the psychologist’s findings as to her litigation capacity.

Most significantly, R.P.  submitted that there was an inherent conflict in the role of the Official Solicitor, who appeared to have assumed that his role was primarily to consider the best interests of her child, and not her. As a consequence, no-one was advocating on behalf of R.P., who was thus deprived of an opportunity to advance her case before the domestic courts.

The Equality and Human Rights Commission submitted an intervention brief on behalf of learning-disabled parents in care proceedings. They maintained that it was essential that decisions about the parent’s litigation capacity should not be taken on the basis of a joint report part-funded by an opposing party in family litigation; that the question of capacity be kept open, with a formal mechanism for it to be challenged by the parent concerned person and reviewed if any evidence suggested it could be wrong or that the position had changed; and that the case put forward by the Official Solicitor or other litigation friend should be focused solely on the needs of the parent.

The application was refused.

The Court’s reasoning

The Court did not consider that it would have been appropriate for the domestic courts to have carried out periodic reviews of R.P.’s litigation capacity, as such reviews would have caused unnecessary delay and would therefore have been prejudicial to the welfare of K.P. ( in any event it noted that assessments were in fact carried out of her litigation capacity in the course of the proceedings) In view of the fact that she had been found to lack the capacity to instruct a solicitor the Court did not consider that this would have been a necessary or even an effective means by which to protect her interests. It concluded that the letter that had been sent to R.P. explaining her rights vis a vis the Official Solicitor on his appointment to her case was sufficient to fulfil the requirements of Article 6. The Court noted in particular that the Official Solicitor

 would do his best to protect her interests but also had to bear in mind what was best for K.P. [her child]

Whilst noting R.P.’s concerns about the Official Solicitor’s focus in the present case on “what was best for K.P.” it agreed with the UK government that the best interests of K.P. were the touchstone by which the domestic courts would assess the case.

Thus, in determining whether a case was arguable or not, it was necessary for the Official Solicitor to consider what was in K.P.’s best interests.

….Moreover, the Court does not consider that “acting in R.P.’s best interests” required the Official Solicitor to advance any argument R.P. wished.

Consequently, the Court did not consider that the fact the Official Solicitor “bore in mind” what was best for the child in deciding how to act amounted to a violation of R.P.’s rights under Article 6 (1) of the Convention.

No violation was thus found under Article 6, and since the complaints under Articles 8, 13 and 14 were essentially linked to the Article 6 complaint, they were also rejected.

Comment

Perhaps this interesting challenge may have had an uphill struggle on these particular facts. But the case is representative of a general problem, that in matters of capacity, the interests of the “incapable” individual concerned may well get sidelined.  The case therefore raises important issues in relation to the role of the state in the very private matters of family relations and health where the demarcations of where people’s “best interests” lie are far from clear. In the patient M case (posted here and here) the Court refused a woman’s family their request for withdrawal of artificial nutrition and hydration because she was in a “minimally conscious state”, one level up from “permanent vegetative state”.  M was represented by the Official solicitor, who opposed this request, arguing that she was “otherwise clinically stable”. But M herself, before she became ill, had expressed the very clear wish she would not want to be kept alive in such a state. Whose interests then was the Official Solicitor really representing? The patient in the bed, the medical profession, or the general public? Or maybe, of necessity, a mixture of all three?  But we should perhaps focus of some form of representation that avoids submerging the interests of the incapacitated individual with everybody else’s.

Watch this space for a report on tonight’s no doubt fascinating panel discussion on this question and other highly topical issues arising out of “Dying, death, and  deprivation of liberty”.

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Related posts:

• British Columbia Supreme Court grasps the nettle in right to die case
• What is a life worth living? Further analysis of M
• Court refuses family’s request
• No right to die without a living will
• GMC to announce policy of striking off doctors who prolong the lives of terminally ill patients against their wishes [updated]
• Our previous posts on the Pretty and Purdy cases and DPP Guidance on Assisted Suicide