By Tory Smith, 6th January 2021
I am a paralegal working at MJC Law. One of MJC Law’s specialties is health and welfare cases in the Court of Protection and in the vast majority of our cases we represent “P” (the protected person).
By way of my own background, I have been involved within the realms of the Mental Capacity Act for a number of years. My initial involvement was in the role of a Paid Relevant Person’s Representative (“RPR”) and Independent Mental Capacity Advocate (“IMCA”). I am aware that these roles are often mentioned within proceedings but for any observers, they may be foreign terms. As such, I thought it may be useful to provide an outline of each of the roles and how they might be involved with P.
An RPR is appointed as part of the deprivation of liberty process. Again, this may be jargon that is mentioned particularly in proceedings relating to a challenge to deprivation of liberty authorisation (section 21A proceedings) and an observer may wonder what on earth everyone is talking about.
The Deprivation of Liberty Safeguards (“DoLS”) are designed to protect the person’s Article 5 and 8 ECHR rights. A number of assessments are completed as part of the DoLS process and if a person does not meet any one of the criteria then they cannot be be deprived of their liberty under standard authorisation. The assessments that are most often talked about are (1) the capacity assessment – i.e. whether a person lacks capacity to consent to the arrangements; (2) the best interests assessment – which also involves consideration of whether the proposed arrangements are the least restrictive possible to meet their needs. Once a standard authorisation has been granted, this essentially means that the arrangements have been approved by the supervisory body (the local authority).
A standard authorisation is granted for a set period which can range from a matter of days or weeks or up to the maximum of 1 year. Conditions can be included as part of the authorisation and act essentially as action points that must be completed during the period of the authorisation.
The process is of granting a standard authorisation is in practice much more in-depth than I have outlined here and there are many more factors that have to be considered but in an effort to not to overload readers with too much information, I have tried to keep it brief. A more detailed explanation can be found here.
In order to further protect the person’s rights, when a standard authorisation is granted somebody is appointed to act at the relevant person’s representative (“RPR”). This is usually a close friend or family member. The role of the RPR is to maintain regular contact with the person and to represent and support them in relation to the DoLS. This can include triggering a review, making a complaint or making an application to the Court of Protection on the person’s behalf.
There are some circumstances where it is not possible or appropriate for a friend of family member to act as RPR. For example, there may be safeguarding concerns relating to them or they may be unwilling to take on the role, or perhaps have conflicting views and would not be willing to support a review or the issuing of proceedings in the Court of Protection. Sadly, also, a common circumstance to arise is that the person does not have any family or friends to take on the role.
In the event that there is nobody to take on the role of an RPR, a paid RPR will be appointed. This is a role that I have previously fulfilled. A paid RPR will have the same responsibilities as a friend or family member would have. They are required to make regular visits to the person, usually monthly, and support them with the DoLS process for the period of the standard authorisation.
I found acting as a paid RPR to be extremely rewarding. Within the role I had the opportunity to form a relationship with the person and get to know all about them. A standard visit to see a client consisted of spending time with the person to discuss how they are doing, how they feel about their placement and care arrangements, if they had any concerns or worries, ensuring that overall their needs are being met and making sure they are happy and content. As well as speaking with the person, I would also speak with staff to discuss in their view how the person is doing, if they have any concerns or if there have been any events since the previous visit that I should be aware of. I would discuss any conditions on the standard authorisation in order to ensure that they are being progressed.
As a RPR you always hope that the client is happy with their placement and care arrangements. This is not always the case and if the person expresses an objection to the placement then as the person’s RPR, it would be my role to take steps to assist the person in challenging the standard authorisation.
Taking steps to have proceedings issued in the Court of Protection is not usually the first resort and generally I would have taken steps to see if the issues could be resolved without the involvement of the court. This could be done by contacting the person’s social worker and alerting them to the wishes and feelings that have been expressed. On many occasions, if the person is unhappy with the arrangements, this would trigger the social worker to look into an accommodation move without the oversight of the court. If, however, this was not possible and the client remained clear and consistent in their objections, I would then make contact with a solicitor in order to issue proceedings in the Court of Protection to challenge the standard authorisation. These are section 21A proceedings.
The role of a RPR in Court of Protection proceedings can vary significantly. Some RPRs act as the person’s litigation friend in the proceedings, whilst others support the person to access legal representation and continue their role as RPR, but do not become involved in the proceedings themselves. The extent of a paid RPRs involvement is often stipulated by funding restraints and an individual organisations’ policies. The organisation I worked for would not enable us to act as litigation friend so this was not a role I was able to fulfil.
In my view there are pros and cons of an RPR acting as a litigation friend. On the plus side, it is beneficial for someone who is already familiar with the person and their circumstances to be supporting them within the proceedings. This also ensures that there is continuity and the RPR is aware of how proceedings are progressing in order to keep the person up to date and involved. But there are also challenges – a RPR should not usually take a view in respect of what is in a person’s best interests. A RPR is there to support the person and if the person says they do not want to remain at their current placement and would prefer to live somewhere that the RPR knows is not an option – say in a house independently with no support – it is not for the RPR to take a view on this and they should still support the person with their challenge. This differs from the role of litigation friend where a position does have to be formed as to the potential alternative options and what is in the person’s best interests. Difficulties here can arise when the position the litigation friend comes to is not in line with the wishes and feelings of the person and there is a danger it could lead to a significant breakdown in the relationship.
The role of an IMCA is quite different to that of an RPR, although there are times that there can be an overlap in the roles. Both roles come under the umbrella of advocacy and involve ensuring a person’s wishes and feelings form part of the decision-making process
An IMCA’s role is to support and represent a person in the decision-making process when important decisions are being made about them. These decisions most commonly concern long term accommodation moves and serious medical treatment cases.
The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 sets out the IMCA’s role and functions. In summary the role is to gather information, evaluate the information, make representations and if required, challenge decisions. I will deal with this in a little more detail below:
An IMCA meets with the person and, similarly to an RPR, discusses their wishes and feelings with them. This should be done in private and without the influence or distractions of others. Where possible, an IMCA aims to meet with the person on a number of separate occasions, at various times, to ensure that the wishes and feelings expressed were consistent and also to give the person the opportunity to maximise their ability to express the same.
As well as obtaining the person’s views directly, steps should be taken to obtain the views of anybody else who may be able to shed light on the wishes and feelings of the person. As an IMCA you have the right, and should exercise this right, to examine relevant health and social care records. This enables the IMCA to be armed with all of the information that is relevant to the decision being made.
Once an IMCA has gathered all of the information, they must then evaluate this. It is important to ensure that all of the different options have been considered and decide if any further opinions may require investigation. The IMCA must ensure that the person has been supported, so far as is possible, to be involved in the decision that is being made and evaluate the information gathered to determine what would be their wishes and feelings if they had capacity to make the decision for themselves.
IMCAs are required to provide a report to the decision maker and this should be done in advance of the decision being made. It is important for the IMCA to raise any issues or concerns they have with the decision maker. It is the role of the IMCA to ensure that all of the relevant factors have been considered as part of the decision-making process and to highlight any gaps that need addressing. When acting as an IMCA, I often attended best interests decision meetings, in addition to providing a report. This provided a good opportunity to ensure that any concerns were addressed and to raise any further queries that may arise as part of the process. It also often provided me with the chance to ensure that the client’s wishes and feelings were given full consideration.
The IMCA should not express their own views as to what is in the client’s best interests and should only express the wishes and feelings of the client. At times this can be challenging as the client’s wishes may be entirely unrealistic but it is still your role to express this (even if your client has said they want to live on the moon!).
An IMCA cannot simply challenge a decision because they do not like the outcome, but in the event that the IMCA does not feels the correct process has been followed or that concerns raised have not been addressed then this can be challenged through the local complaint procedure. If issues cannot be resolved then it should then be referred to the Court of Protection.
As with a paid RPR, an IMCA is not always required. If a person has family or friends who are appropriate to consult as part of the process then an IMCA will not be instructed. If, however, family and friends are not appropriate, or there are no family and friends available, then an IMCA should be instructed.
In addition to the role of the IMCA set out above, an IMCA can also be instructed as part of the DoLS process in order to support a family or friend acting as RPR in their role or alternatively to fill a gap in a RPR being appointed. Further, there can be an overlap in acting as an IMCA and a paid RPR if a decision is required about, for example, whether a person should move into a care home in the long term. Each organisation is different and not all paid RP’s are also qualified IMCAs so cannot fulfil both roles. I personally feel it can be a particular advantage if an advocate is able to act as an IMCA and a paid RPR as it provides a more holistic approach and can provide consistency for the client.
I am currently a paralegal at MJC Law. In this role I support the solicitors within the firm to progress cases within the Court of Protection. In the majority of cases we support the protected person (“P”) by their litigation friend which is often the Official Solicitor or a RPR. We also accept instruction from other parties, including family members.
Observers may have seen paralegals in attendance at hearings and wondered what the difference is between them and the solicitors. Paralegals are usually not qualified solicitors and therefore must work under the supervision of the qualified solicitor who has conduct of the case. A paralegal does not have any rights of audience which means they are unable to speak in court and therefore require a qualified solicitor or barrister to be in attendance with them.
The role of a paralegal can vary from firm to firm but in my role I become actively involved in cases under the supervision of a solicitor. My role includes the consideration of the papers and evidence, drafting applications and orders, corresponding with the parties to narrow the issues and also completing administration tasks as required.
As part of my role I also attend on clients to discuss the proceedings and obtain their wishes and feelings. I must say that this is one of the best parts of my job. When I attend on clients I am able to utilise the skills and techniques that I developed as a paid RPR and IMCA to determine their wishes and feelings. I can then ensure that these are communicated to the other parties and the court in order to be considered as part of the decisions being made.
The main difference between my previous roles and my current role relates to the position taken in relation to the person’s best interests. As mentioned above, in my previous roles I communicated the person’s wishes and feelings but did not have to consider what I thought to be in the person’s best interests. Legally representing the person concerned requires active consideration of this in advising the litigation friend.
In order for a case to progress within the Court of Protection, providing the court is satisfied that the person lacks capacity, the parties must each decide what they consider is in the person’s best interests based on the evidence before them and communicate this position to the court to allow the court to make its determination.
Whilst each of the roles have distinct differences in the ways in which they support P, they all share the ultimate aim of ensuring that P has a voice in the decisions that affect their lives. In my view, it is essential that any professional working with any person who could potentially lack capacity has an awareness of the roles discussed here and an understanding of when it may be appropriate to make a referral to an advocacy agent or to make an application to the Court of Protection. I hope that the Open Justice Court of Protection Project goes some way in boosting awareness and that blogs such as this will help others to gain insight into how the roles introduced by the Mental Capacity Act 2005 work in practice.
Tory Smith joined MJC Law in January 2019 as a paralegal. She has just recently progressed on to be a trainee solicitor. MJC Law is a specialist law firm, offering advice and representation in cases involving the Court of Protection, mental health and social care and health law.