A Guide to Rule 1.2 Representatives
Rule 1.2 Representatives
Sources:
• Mental Capacity Act 2005
• Court of Protection Rules 2017
• Court of Protection Practice Directions
• Case Law
The Rules:
The COP Rules 2017 state: Participation of P 1.2. — 2. …
(a) P should be joined as a party;
(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;
(c) P’s participation should be secured 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;
(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;
(e) P’s interests and position can properly be secured without any direction under subparagraphs (a) to (d) being made or by the making of an alternative direction meeting the overriding objective.
Paragraph 2(c) is the part which defines the role which is generally referred to as ‘rule 1.2 representative’. This means there are 2 elements:
1) Providing the information set out in section 4(6)
2) Such other functions as the court may direct Section 4 (6) Mental Capacity Act 2005 states:
He must consider, so far as is reasonably ascertainable—
(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so
This is not an unfamiliar task for advocates.
However, as far as court directions go, the standard order in community deprivation of liberty cases does not set out what the role of the rule 1.2 representative, it simply appoints the representative.
Part 17 of the COP Rules provides further clarity about the role of the rule 1.2 representative in that it says:
• The court must be satisfied they ‘can fairly and competently discharge his or her duties on behalf of P’ (17.9)
• The court can give directions at any time as to the scope of the representative’s appointment (17.10(4))
• The representative can request directions from the court about ‘performance, terms of appointment or continuation of the appointment of the representative’ (17.11)
• The court can end the appointment and appoint a replacement representative at any time (17.12)
• The appointment of the representative continues until further order (17.12(4))
• The appointment of the representative must be ended if P has capacity and does not wish for them to be the representative (17.13(5)
• The representative must be notified of the intention to seek their appointment (17.13)
The Practice Directions
The purpose of practice directions is to supplement the COP Rules and provide more detail on the procedural requirements.
Practice Direction 1A governs the participation of P in the proceedings provides some guidance on how the court should choose between the various options for P’s participation and refers specifically to the Human Rights Act 1998 and case law developments.
Practice Direction 11A governs the procedure for s21A applications and applications for authorisation of a community deprivation of liberty under the streamlined procedure. It sets out the various pieces of information that must be provided as part of the application, including whether there is any dispute and whether there is any question about whether the arrangements are in P’s best interests or the least restrictive option.
Practice Direction 17B is intended to govern the rule 1.2 representative role, but deals with procedural matters.
The Case Law
Charles J stated in the caSe of Re NRA & others [2015] EWCOP 59 that in order to comply with the Human Rights Act, the streamlined procedure needed to include involvement of an independent person to assist the court by:
i) eliciting P’s wishes and feelings and making them and the matters mentioned in s. 4(6) of the MCA known to the Court without causing P any or any unnecessary distress,
ii) critically examining from the perspective of P’s best interests, and with a detailed knowledge of P, the pros and cons of a care package, and whether it is the least restrictive available option, and
iii) keeping the implementation of the care package under review and raising points relating to it and changes in P’s behaviour or health
In Re JM & Others [2016} EWCOP 15 Charles J concluded that appointment of advocates into the role of 3A representative (the predecessor to rule 1.2 representatives) would meet these requirements if it were available in particular cases.
In Re KT and others [2018] EWCOP 1, Charles J considered that a case by case approach should be taken in deciding whether to appoint a professional as a rule 1.2 representative in streamlined cases, or seek a report from a Court of Protection Visitor. However, he noted there were significant advantages to use of advocates as rule 1.2 representatives because they would have the ability to carry out regular reviews ‘on the ground’ rather than carrying out one or two visits purely for the purposes of these proceedings. It follows that this is seen as an important part of the role, which enables issues to be addressed.
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Local Authority Arrangements
Because funding for advocates to act as rule 1.2 representative, it is possible that contracts may specify what the local authority expects from this service. Any such contract can’t restrict the scope of the work to anything less than what the COP rules and order say, and they will take precedence over any contract. But the contract may provide further guidance on the scope of the law where the rules and case law leave this open.
Conclusion
Pulling all of this together, it would appear that the role of a rule 1.2 representative is to:
• Obtain P’s views about their care arrangements, as well as any other information about the factors they would take into account or their beliefs and values
• Communicate that information to the court, either directly or via the authority making the application
• Providing a view as to P’s best interests in relation to their care arrangements
• Keep the placement under review and bring to the attention of the authority/authorities any issues such as
• A change in P’s views
• A change in their circumstances or the care that affect the best interests determination
• Any issues that might mean the matter needs to be brought back to the court sooner (arrangements becoming more restrictive than what was approved by the court)
• Any issues that might make the case unsuitable for the streamlined procedure e.g. if the arrangements are no longer ‘uncontroversial’
• Anything else specified in the directions given by the court
• Anything else provided for in the advocacy contract
Once appointed, the representative remains in the role ‘until further order’. This means that until the court removes or replaces the representative, their role continues. This creates an issue in cases where a new application is not made to the court at the end of the review period specified in the order. The representative cannot cease their involvement, but they are also not in a position to make an application to the court.
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