Autonomy and the role of the Official Solicitor – whose interests are really being represented?
10 October 2012
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.
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.
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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- 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
14 October 2012
Dear Ms English and Mr Hemming
I believe that the law is wrong not to allow people to instruct their own solicitor.
Why should they be prevented from having their own lawyer and be able to be represented in legal cases without having someone imposed on them as “litigation friend”?
I asked the Law Commission and Law Society this question under Freedom of Information but still have not had a proper answer in my opinion even after the Information Commission insisted that the Law Commission HAD to answer my question why a [mental health] patient was not allowed to choose their own solicitor.
“There is something very rotten in the state of Denmark” – to misquote Shakespeare.
And I agree entirely with Mr Hemming that it is a Human Rights issue to be able to have your own choice of solicitor and lawyer representing you, rather than having a “litigation friend” imposed on you when you have virtually no say in what is in your OWN “best interests”.
I believe that the Court of Protection and Secret Courts need to be aware of this as also so should Civil and Criminal Courts.
Thank you very much for this excellent work.
I spoke about this issue in parliament earlier this year:
This is one of two cases that I have sent to The European Court of Human Rights. (in the sense of filling in the application and in RP’s case posting it myself).
Generally solicitors refuse to act for people without litigation capacity – in challenging their removal of litigation capacity.
I think it’s a real shame that this case has become overshadowed by the antics of John Hemming MP. Although it raised very serious Article 6 issues, every time these issues are raised they get swept aside by a discussion of Hemming’s behaviour. Valid as many of those criticisms are, this misses the point entirely. I’m really pleased to see that serious lawyers like Rosalind English and Richard Stein are talking about these issues.
My feeling is that the ECtHR gave a very superficial analysis of the situation. Prior to RP bringing the case in the Court of Appeal, it wasn’t even clear that a person who had been found to lack capacity to litigate had standing to (see paragraph 36 where Sir Nicholas Wall ‘says no more about it’ as neither the OS nor the LA raised a challenge on these grounds). I suppose the ECtHR ruling has at least made clear that people in RP’s position must have standing to apply to the court to displace their litigation friend. But there are several problems here. How is a person who may have borderline capacity, who is unlikely in the extreme to be familiar with CPR 21 or Court of Protection Rule 147, supposed to do so without being able to instruct a solicitor? These are precisely the circumstances which drive people into the arms of McKenzie friends like Hemming in the first place. Secondly, if they do wish to challenge the appointment of a litigation friend in court – is there public funding for them to do so? How are they supposed to secure and fund any expert reports they might need?
The ECtHR placed great store by the OS’s complaints mechanism. There is very little evidence that the complaints mechanism has ever been used in this way. Certainly none of the OS’s annual reports for the last four years suggests that he has withdrawn from a case on the basis of a complaint. The ECtHR also said that RP should have raised her challenge to his appointment earlier. There is very little discussion as to precisely what RP was told about the OS’s appointment at the outset. The role of a litigation friend seems baffling to most people outside the legal world. To be told that somebody has been appointed who will act in your best interests is very different to being told that somebody has been appointed who might argue a case which conflicts entirely with what you want. Surely that latter point is what must be pressed home to a person in order for them to fully understand the significance of being found to lack litigation capacity. Yet neither the CoA nor the ECtHR report that this is what RP was told.
One of the core principles of the MCA is that people should be offered support to promote their capacity in the relevant respect. If you look at the correspondence between RP and her solicitor quote in the CoA ruling, it’s very hard to see how this is geared towards supporting a young mother with learning disabilities who is extremely distressed. For somebody in RP’s position, the first stage should be to provide support for her to understand and make the requisite decisions herself. For people with learning disabilities, it may require skills which mainstream solicitors don’t have – yet there is very little provision of advocacy services or similar which could help people with litigation matters.
There is a wider question about whether it is even appropriate for a person’s ‘objective’ – as opposed to ‘subjective’ – best interests to be represented in court. There are cases where there is a danger that a person might run up excessive costs or settle for trifling amounts without the intervention of litigation friends – they often have a very valuable role in such cases. Likewise in cases where a person’s wishes and preferences cannot be discerned. But in cases like this, or cases in the Court of Protection, where the courts are already bound to give effect to the best interests of the child or the person themselves, what is the danger in pressing as hard as possible for what the person actually wants? To do otherwise distorts the case that is presented before the court so that a person’s rights to self-determination are never fully adversarially tested. What is tested instead, is other people’s views of what they should want.
Many thanks for this detailed and most interesting analysis of the problem. Hopefully we will have more challenges of this sort to engage Strasbourg’s real attention.
For anyone confused by Hemming’s sudden appearance and cryptic remarks, this case to which this ruling relates is the one in which Hemming’s personel interventions and efforts to spin the court an elaborate conspiracy theory about state-sanctioned baby stealing earned him several sting rebukes from Sir Nicholas Wall concluding with:
“As to Mr. Hemming, my judgment is that his self-imposed role as a critic of the family justice system is gravely damaged, and speaking for myself I will not be persuaded to take seriously any criticism made by him in the future unless it is corroborated by reliable, independent evidence.”
She doesn’t have a significant learning disability. The case was a travesty. Furthermore the OS takes no notice when people complain that a litigation friend has been wrongly appointed. I have other cases.
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