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This article considers an unanswered question of the duty of a litigation friend raised in the case of TA v AA (by his litigation friend, the Official Solicitor) and Knowsley Metropolitan Borough Council  EWCA Civ 1661. AA has Korsakoff's syndrome and epilepsy. He did not wish to be deprived of his liberty pursuant to a standard authorisation given by KBC under Sch A1 to the Mental Capacity Act 2005 (MCA 2005). TA is his father and was his ‘relevant person’s representative’ (RPR) in respect of the standard authorisation. TA, as RPR, made an application to the Court of Protection (CoP) under MCA 2005, s 21A on the grounds that the ‘best interests requirement’ was not met. AA was joined as a party and I was appointed as AA’s litigation friend. Because the evidence, including that of an independent social worker, instructed with the CoP’s permission, established that the requirement was in fact met, I invited the court to substitute AA as the applicant and give me permission, as his litigation friend, to withdraw the application. That was the outcome. TA asked the Court of Appeal for permission to appeal certain subsequent procedural decisions of the CoP and thereby the outcome. The Court of Appeal held that it had no jurisdiction to give permission to appeal. So the substantive question, which is of wider interest, was not answered.
How the question arises
A litigation friend’s duty at common law is to conduct the proceedings in the protected party’s best interests and doing that does not necessarily mean conducting them as the protected party would wish. MCA 2005, s 1(5) provides that ‘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’. A litigation friend is a decision-maker under the MCA 2005. To meet the requirements for a standard authorisation to be given, it must be determined that, among other requirements, it is in the best interests of the relevant person to be a ‘detained resident’.
So the question is: how can the litigation friend lawfully pursue a case that the ‘relevant person’ does not meet the ‘best interests requirement’, if the evidence, including independent evidence, is that they do so?
If the CoP is persuaded that any of the requirements for a standard authorisation are not met, then it ‘may’ (here meaning, I suggest, ‘shall’) make an order either terminating the standard authorisation or directing the supervisory authority to terminate it. That was, of course what AA and TA wanted.
The full version of this article appears in issue 1 of 2014 of Elder Law Journal. If you subscribe to the journal please click here to read the full article.
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