What is an ALR?
ALRs are members of the Law Society's Mental Capacity (Welfare) Accreditation Scheme who have fulfilled the additional requirements for approval under that scheme as an ALR.
In Court of Protection proceedings, the person at the centre of the proceedings and to whom the proceedings relate is often referred to as ‘P’. The Law Society describes ALRs as playing “an essential role in ensuring that a P who lacks capacity is at the centre of proceedings in the [Court of Protection]. Given the vulnerability of the client group - who will, by definition, lack capacity to conduct the proceedings - and the importance of the issues litigated in the [Court of Protection], those practitioners who are appointed as ALRs must demonstrate high professional and ethical standards to maintain confidence in this sensitive role”.
What is the role of an ALR?
Rule 1.2 of the Court of Protection Rules 2017 (hereafter ‘CoP Rules 2017’) states that in every Court of Protection case, the judge must give thought to whether P should take part in the case. The role of an ALR is defined by Rule 1.2(2)(b) of the CoP Rules 2017 as being “to represent P in the proceedings and to discharge such other functions as the court may direct”. Guidance provided by the Law Society states that this includes:
- Meeting with P and establishing P’s wishes and feelings about the decisions being considered by the court;
- Deciding how to keep P informed of the case as it develops;
- Obtaining and considering the papers relating to the case;
- Obtaining and considering P’s health and social care records, as well as any other relevant disclosure and documentation;
- If P is eligible for Legal Aid, corresponding with the Legal Aid Agency on P’s behalf;
- Deciding whether to instruct a barrister on P’s behalf; and
- Preparing for the next hearing including giving consideration of whether P should take part and, if so, how this should be achieved.
What is the difference between an ALR and a litigation friend?
The appointment of an ALR is a possible alternative to a litigation friend in appropriate cases.
A litigation friend can be appointed to make decisions about a case for P when P lacks capacity to make his/her own decisions about the case. The court could appoint anyone who is suitable and willing to act as a litigation friend for P; for example, a family member or friend. If there is no one suitable and/or willing to act as a litigation friend, the court will ask the Official Solicitor to consider acting as P’s litigation friend. The person being appointed as litigation friend for P must accept the court’s invitation to take on this role before their role as litigation friend begins.
Whilst it may seem beneficial to have a litigation friend who can make decisions for and on behalf of P, this is not always necessary especially at the beginning of proceedings in cases where the issues are relatively defined or when the issues before the court are not overly complex. ALRs can assist the court where urgent orders are required and it would not be possible to appoint a litigation friend in that time. ALRs may also play an important role in narrowing the issues that require the court’s determination. This would allow the already stretched resources of litigation friends, such as the Official Solicitor, to be reserved for more complex cases
When deciding whether to appoint P a litigation friend or an ALR, the Law Society’s guidance says that the court will need to consider the following:
- The age of P
- Whether there will be a need for expert or other evidence to be obtained and filed, or other material gathered, on P's behalf;
- The nature and complexity of the case; and
- The likely range of issues.
The other options available to the court to ensure P’s participation in proceedings
Rule 1.2(2) of the CoP Rules 2017 lists five options available to a judge to ensure P’s involvement in the proceedings. The five options are:
- Rule 1.2(2)(a) – “P should be joined as a party”. The term ‘party’ means that P would be named as a participant in the proceedings (for example, applicant or respondent). This would be without a litigation friend if P has capacity to instruct solicitors him/herself or with a litigation friend if P lacks capacity to conduct the proceedings him/herself;
- Rule 1.2(2)(b) – “P’s participation should be secured by the appointment of an accredited legal representative to represent P in the proceedings and to discharge such other functions as the court may direct”. As mentioned above, this is the rule that permits the court to appoint an ALR to represent P;
- Rule 1.2(2)(c) – “P’s participation in the proceedings should be secure by the appointment of a representative whose function shall be to provide the court with information as to the matters set out in section 4(6) of the Act and to discharge such other functions as the court may direct”. The ‘Act’ refers to the Mental Capacity Act 2005 (hereafter ‘MCA 2005’). In this instance, P would not be joined as a party to the proceedings and the representative would not be a legal representative but, rather, is likely to be a family member or friend who is considered appropriate to be appointed in this role. Section 4(6) of the MCA 2005 states that the court must take in to consideration: (a) P’s past and present wishes and feelings (and, in particular, any relevant written statement made by P when s/he had capacity; (b) the beliefs and values that would be likely to influence P’s decision if s/he had capacity; and (c) the other factors that P would be likely to consider if s/he were able to do so. The (non-legal) representative will be responsible for providing the court with this information;
- Rule 1.2(2)(d) – “P should have the opportunity to address (directly or indirectly) the judge determining the application and, if so directed, the circumstances in which that should occur”. P could address the judge directly by attending court hearings or, alternatively, the judge may visit P at P’s place of residence (known as a ‘judicial visit’). P could address the judge indirectly by providing a written statement; or
- Rule 1.2(2)(e) – “P’s interests and position can properly be secured without any direction under sub-paragraphs (a) to (d) being made or by the making of an alternative direction meeting the overriding objective”. The overriding objective of the COP Rules 2017 is to enable “the court to deal with a case justly and at proportionate cost, having regard to the principles contained in the Act”. The ‘Act’ refers to MCA 2005 and the principles contained in the MCA 2005 are: “(2) A person must be assumed to have capacity unless it is established that he lacks capacity; (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success; (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision; (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests; and (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.” Rule 1.2(2)(e) of the CoP Rules 2017 is, therefore, used when the judge feels that P does not need to be joined as a party to the proceedings, nor does P require a representative (either legal or non-legal), because the case can be dealt justly and at a proportionate cost and, using the information provided to the court by the parties in the proceedings, the judge is able to reach a decision that is the least restrictive on P’s rights and freedom but also in P’s best interests.
How can Conroys Solicitors LLP assist?
Conroys Solicitors LLP has an experienced and knowledgeable mental capacity team specialising in Court of Protection matters. If you consider you may have a case that would benefit from having Elizabeth Conroy or Ben Conroy be appointed as an ALR, please do not hesitate to contact us to arrange an appointment with one of our lawyers.