Court of Protection – RPR & Litigation Friend Explained
Posted:20th February 2023
What is a Relevant Persons Representative (‘RPR’)?
An RPR is an independent and impartial individual, who’s job is to amplify the voice of a person (P) who is subject to a deprivation of liberty safeguards (DOLS). The role of the RPR can be conducted by a friend, family member or independent advocacy organisation. The RPR is responsible for ensuring that P’s voice is heard and that the placement they are in, continues to be the least restrictive option for P. One of the jobs of the RPR is also to bring a case to the Court of Protection, if P wishes to challenge their placement. Throughout this process, the RPR should ensure that the individuals voice is heard.
What is a litigation friend (‘LF’)?
If an objection is brought to the Court of Protection, for a review of P’s placement, the role of the LF is to ‘direct the proceedings’ on behalf of P, when they lack the capacity to do so themselves. P shall remain the solicitor’s client, but the instructions that they receive whilst conducting the matter, are given by the LF. Within this role, the LF will be required to:
- Make decision in P’s best interests’.
- Do everything they can to tell P what’s happening in the case and find out P’s wishes and feelings;
- Talk to P’s solicitor about what is happening, get advice and give instructions to the solicitor.
So, can a person be an RPR and Litigation Friend?
In short, yes. The case of AB v LCC  clarified that one person, can be both, and in many circumstances, this would be advantageous, as the RPR has in-depth knowledge of the client and their interests.
Could being the Litigation Friend potentially conflict with my duties as an RPR?
They could, and often do, conflict. In summary the roles of the two are as follows:
- RPR: To voice the views of a person, advocating for what they want;
- Litigation Friend: Make decision in the individuals best interests within court proceedings.
At times, these two things can conflict with one another. However, often a distinction can be drawn between the two roles.
The RPR’s main role is to amplify P’s voice to the ultimate ‘decision maker’. Within the context of proceedings, this would mean bringing the challenge to the court, ensuring wishes and feelings are ascertained, ensuring the option of a judicial visit has been explored, and P continues to be at the centre of proceedings.
On the other hand, the Litigation Friend must consider the views of P, as well as the other evidence, to decide what they consider in P’s best interests’. This can often feel in-conflict, when the views of P, and what the Litigation Friend considers to be in their best interests, are not the same.
However ultimately, the same person can wear the two different hats. The RPR hat, ensuring that P’s voice is heard, and they have an opportunity to engage as much with the process as they so wish, and their litigation friend hat, ensuring that the views of P, as well as all the other evidence, is considered fully to determine what they consider to be in P’s best interests’.
What if the conflict will cause issues?
Whilst the RPR’s involvement in proceedings is invaluable, solicitors do not want to ruin the relationship that the RPR has with P. Therefore, if the two roles are likely to cause issues, for example, when P is passionate about something which is likely not in their best interests, the case is particularly complex and intricate or the potential of damaging relations with family members, it may be that the RPR gives up their role of LF, and requests that an Accredited Legal Representative (ALR) or the Official Solicitor (OS) is appointed. Solicitors would always advise the RPR when they consider this necessary or appropriate.
P is 64 years old and lives in a care home under a DOLS. P tells her RPR, Ms Jones, that she no longer wishes to be in the care home and subsequently a case is brought to the Court of Protection. The RPR agrees to be P’s Litigation Friend and the proceedings start. Within the proceedings, Ms Jones continues to regularly see P, ensuring that her wishes and feelings are amplified, and that her voice is put across within proceedings. Ms Jones ensures that the LA complete a review of potential placements, a capacity assessment and exploration of more community access.
The capacity assessment concludes that P lacks capacity with regards to care and residence. Ms Jones considers all the evidence, and decides that it is likely P does lack the capacity to decide on issues of care and residence. In this situation, in order to not conflict with her duties as RPR, the litigation friend could:
- Leave it to the court to decide on the issue of capacity;
- Submit that the individual lacks capacity but allow P the opportunity to also voice her views, so they can be considered alongside the litigation friends submissions (for example, invite P to court, a judicial visit, or ascertain their wishes and feelings in a statement). This would allow Ms Jones to continue in her role of RPR, amplifying the individuals voice, whilst also ensuring her litigation friend role, deciding what is in P’s best interests, is not compromised.
The proceedings continue and P is assessed as requiring 24-hour care, however, P is clear that she does not believe she requires this. On the whole, Ms Jones considers the evidence, and concludes that it is likely she does need to stay in a care home. The mention of staying in the care home frustrates P and over-time, this starts to affect P’s relationship with Ms Jones (in her RPR capacity) with P seeing Ms Jones as ‘siding with the social worker’. Consequently, Ms Jones and the solicitor have a conversation and agree that the Official Solicitor is requested to replace Ms Jones as litigation friend, owing to it being important to keep the long-standing relationship between P and her RPR.