Should P’s ‘Litigation Friend’ instruct P’s lawyer to promote P’s wishes and leave ‘Best Interests’ decision-making to the judge?

By Jenny Kitzinger – 12th August 2020

“I am incarcerated in a building against my will and which prohibits me having my own volition. The removal of my free will is inequitable, unjustifiable and entirely wrong in my view”

Mr G

These are the words of Mr G – a man in his early 60s who was the subject of a Court of Protection hearing I observed recently. He wanted to leave his current placement and return home.  His wishes did not prevail. The court ruled that he should remain in his current placement in an Acquired Brain Injury unit for now. Another hearing will be held in October.

So, what went on in this hearing, and what role, in particular is played by Mr G’s ‘Litigation Friend’?

The decision to be made

Mr G is a man in his early 60s with frontal lobe disorder and some complex medical conditions. The court had already determined that he lacked capacity to conduct proceedings and to make decisions about where he lives and the care he receives. He had previously agreed voluntarily to move into a centre for people with Acquired Brain Injury [ABI] but now wished to return home to live in his flat in the community. It was this decision that was before the court

The case was heard before Judge Jim Tindal. Mr G was the applicant in this case and was represented by his litigation friend the Official Solicitor. The respondents were the county council, the clinical commissioning group and the NHS Trust.

This case was a stark illustration of how P’s ‘Litigation Friend’ may argue in court for the polar opposite of what P himself says that he wants.

The arguments presented by the Official Solicitor (“representing” Mr G) versus those presented by Mr G himself

The position taken by the Official Solicitor “on behalf” of Mr G was that Mr G should not return home, i.e. Mr G’s legal representative made an argument directly contrary to Mr G’s wishes.  Counsel laid out the background to the case, including intensive efforts to support him in his own flat over about six months prior to admission to the ABI unit, and an outline of current rehabilitation goals within his placement e.g. addressing his alcohol addiction, reducing his oxycodone medication and maintaining good control of his diabetes. A return home risked putting Mr G “in peril”, with the risk of “poor compliance with nutritional intake” and “high risk of sudden death if he failed to comply with diabetic medication regimes”. The OS asserted that it is in PG’s best interests to remain at the current placement.

Nobody opposed this position except for Mr G himself. Mr G asserted that he was “perfectly capable of making decisions”. A doctor’s report referring to alcohol and opiate dependency, amnesia and vascular dementia, was, according to Mr G, full of “countless errors’. The only disability Mr G seemed to acknowledge was related to the residual impact of a stroke. This, he said, meant that “if I tried to read at my erstwhile speed I would miss out some paragraphs.” He was, he declared, fully competent to manage his own life.  Mr G also rejected any suggestion that his current placement benefitted his health and added that the other people residing in his placement all had mental problems and that association with them did not “enhance my life”. He also saw no rehabilitation benefits as: “I have received zero, absolutely zero, rehabilitation”, and anyway, he declared, he did not need any rehabilitation. Finally Mr G also argued that problems in managing his own health were in the past. He acknowledged there had been “a reasonable level of chaos” and had “no hesitation in confessing I drank while I was with [now ex-partner], but that was because of the stress’” He was also prepared to “readily admit” that his mother’s death and other difficult circumstances had, for a while, “led to an absence of complete clarity”. He had temporarily “lost the clear view that I always held”. It would be different now however. “I give you my word”, he declared, that if allowed home, “I would conduct myself in an exemplary style. I would meet whatever you impose on me in good heart because it is a means to an end”.

Courtesy, respect and acknowledgement

The court was exemplary in ensuring Mr G was heard in the court, with a great deal of effort put in to enable his participation and time devoted to hearing him. He was treated with great courtesy throughout. During the hearing itself Mr G was explicitly acknowledged by the judge as “an intelligent and articulate gentleman” who, the judge declared, could “eloquently and respectfully” contest the opinion of the medical profession and indeed, of the judge himself.  There was clear concern not to undermine Mr G’s image of himself and his dignity in court.  For example, before quoting from the Mental Capacity Act 2005, the judge said “forgive the terms I must use” before going on to refer to “a disturbance in the functioning of the mind or brain”. There was attentive listening and empathy, for example when the judge echoed back to Mr G, that he felt “caged in” – explicitly stating “my phrase, not his, but I hope it reflects how he feels”.  The judge repeatedly indicated that he had heard and acknowledged Mr G’s strong wish to return home. He also drew attention to the fact that Mr G’s so-called legal representative was, in practice, arguing against what Mr G himself said he wanted, commenting to Counsel: ”You’ll usually say you represent Mr G, but given we have just listened to Mr G explain his position  you’ll understand why I say you act for the Official Solicitor”

Having heard Mr G’s views, the judge nevertheless over-ruled them. In doing so he was explicit that he was looking not just at risk but at best interests and there was a need to balance safety (protection) versus a return home (self-determination) which “would satisfy the very strong expression of beliefs, values, wishes and feelings”. This was not just about preferences but also, he said “about rights – a very weighty factor”.

The judge was careful to soften the blow of over-riding Mr G’s wishes, suggesting, for example that with the easing of lockdown “the lived experience of the last months may not be the same for the next 2 months” in the ABI unit. He also held out the possibility that a different decision might be made at the next hearing (in October), with the hope that the rehabilitation process in the interim would actively maximise the chance of Mr G achieving his goal.

There was a great deal to admire in the conduct of the proceedings….so why did it feel so unsatisfactory from my point of view? Why did I find the process unsettling?

An unsettling process – what was left unexplored?

While I note the courtesy, empathy and care with which Mr G was treated, it nonetheless felt as if his wishes were not fully represented or explored in the context of this court hearing. I did not have access to any of the court bundle, so do not know if these issues may have been addressed elsewhere, but in the context of this hearing, I was left with many questions. 

The Mental Capacity Act 2005 requires best interests decision-making to take into account P’s “past and present wishes and feelings” (s. 4(6)(a)). 

In relation to Mr G’s present wishes, it was clear that he wanted to return home.  But I wanted to understand more about this.  For example, if it is indeed true that Mr G’s life is in peril outside his current placement, is that a risk he would wish to take? I didn’t hear this question being asked of him. For me the most poignant, but unexplored parts of P’s testimony in this hearing were where he talked about an apparently reduced life expectancy and made clear that he had no wish to spend his last years living in “a hospital”. Did he want to go home, I wondered, even if, this might put his life in peril?

In relation to Mr G’s past wishes, there seems to be no exploration at all (in the hearing).  I did not hear any discussion of “ the beliefs and values that would be likely to influence his decision if he had capacity” (s. 4(6)(b) of the Act) or “the other factors that he would be likely to consider if he were able to do so” (s. 4(6)(c) of the Act).   Before his acquired injury, when he had capacity to consider such issues, how would Mr G have balanced protection and self-determination? Was he a man who, prior to losing capacity to make decisions about such things, took risks, for example? Was exercising his own “free will” a core value for him and was he the type of man who would have chosen liberty over safety?  

Of course, attending one hearing is only a glimpse into one moment in a complex ongoing case, without the benefit of all the written evidence informing proceedings. From what I witnessed I also got the sense that it might be a challenging process to work with Mr G on such questions.  In relation to his present wishes, he gave no signs of entertaining the possibility that his life would be in peril were he to return home – and this was a difficulty which would have to be overcome in order to explore his present views on this possibility.

In relation to his past wishes, Mr G projected such a strong desire to be in charge of arguing his own case and such confidence in his abilities to do so that he may have been reluctant to allow professionals to be involved in exploring his past wishes (e.g. by consulting others who knew him prior to his brain injury).

Such challenges, however, are all the more reason for skilled advocacy support and strong person-focussed representation via a Litigation Friend.  A form of representation felt completely absent in this hearing: instead Mr G seemed very alone in court, and completely outgunned, with his so-called ‘representative’ serving to oppose his wishes. This is a pattern I have seen repeated in many other hearings and brings me back to a core concern about the role of the Litigation Friend in the Court of Protection

Time for change?

The Mental Capacity Act 2005 states that a best interests decision includes considering ‘the person’s past and present wishes and feelings (s 4(6) MCA) and the considerable weight that should be given to P’s wishes has been clarified by  the Supreme Court in Aintree v James [2013] UKSC 67, and in subsequent case law. The process of gathering, exploring and representing P’s wishes is therefore an absolutely critical part of any best interests decisions.

Many of the blogs on this website have highlighted the great weight given to P’s wishes in best interests decision-making and the efforts and compassion put in to hearing P’s voice and the skill of the judge in engaging with P.  Less focus has been given to the mechanisms through which P’s past and present wishes and feelings are represented. However, we did focus on this in a previous Open Justice Court of Protection blog, which highlighted the problem of counsel appointed to represent P arguing for exactly the opposite of what P wanted.  The potential injustice and inequalities of this anomaly have also been highlighted by legal experts who point out that “Ordinarily, a lawyer who submitted entirely the opposite of what she knew her client to wish would face, at best, professional sanctions, and at worst, a claim for negligence.” But it is common for this to take place in the Court of Protection. (Alex Ruck-Keene, Peter Bartlett and Neil Allen)

Attending this hearing yet again left me wondering whether the best interests process is potentially undermined by having P represented by someone apparently tasked to secure his ‘best interests’, rather than doing his best to represent what P wanted for himself. If P’s lawyer was instructed to promote P’s views, we might get better evidence of past and present wishes and feelings. This might also force the court to grapple with the challenges of accessing and considering both past and present wishes and explicitly engaging with P’s own values (past and present) in weighing up their own safety versus self-determination

Do we need to change the system?  Should P’s ‘Litigation Friend’ instruct P’s lawyer to promote P’s views – and leave ‘Best Interests’ decision-making to the judge?

Jenny Kitzinger is a Professor in the School of Journalism, Media and Culture at Cardiff University, where she also co-directs (with Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre. She tweets @JennyKitzinger