Of courts and capacity

Solicitor Keith Lock will be known to many ECA readers as a very helpful member of the Office of the Official Solicitor. Having had thirty two years’ experience he reflects on the history and more recent changes he has seen there and casts an eye to the future.

Roundabouts and pendulums…
We have a new Mental Capacity Act that will hit us soon and which will introduce much needed development on the wide-ranging procedures needed to benefit our client group, but this article is not about that. Rather, it is a personal reflection on the more mundane changes that have always gone on in the background, yet directly affect the client group, their families and legal advisers but, importantly, set within a background of the development of the law relating to persons who are incapable of managing their property and affairs.

The strands that link the official solicitor (OS) with the Court of Protection (COP), the public trustee (PT), the Public Trustee Office, renamed the Public Trust Office in 1986 (PTO) and the Public Guardianship Office (PGO) (soon to be evolved into the Office of the Public Guardian) extend over a long period. See below for the historic material on this.

The official solicitor
The state has always recognised the need for representation of an incapacitated person when a benevolent relative or friend cannot be found to act on his behalf. This function has been undertaken on behalf of the Crown as parens patriae in various ways. Although the official solicitor’s work is now largely acting as litigation friend (or in family proceedings, guardian ad litem or next friend) of last resort, the development of the functions of his office can be traced back through the 18th century. Prior to 1842, the Office of the Six Clerks (which interestingly is mentioned in Pepys’ Diary) operated arrangements to assist impoverished parties proceeding in Chancery suits “in forma pauperis”, including those in this category who were lunatics or infants, and this function continued through various offices until the modern system of legal funding became effective very many years later.

As part of the series of reforms of the Chancery Court in the mid 19th century, a number of offices were abolished, including the Office of the Six Clerks, which went in 1842. However, the Solicitor to the Suitors’ Fund (originally formed in the 18th century, primarily to supervise the management of the funds of suitors held by the Chancery Court) then also, as a matter of practice, came to be appointed by the Lord Chancellor to represent “paupers, infants and lunatics” under the Court of Chancery Act 1842, where there was no “natural protector”.

In 1871 the Lord Chancellor appointed the first Official Solicitor to the High Court of Chancery in England and directed him to perform the official duties formerly carried out by the Solicitor to the Suitors’ Fund, although by 1875 the original duties of the Office of Solicitor to the Suitors’ Fund had largely disappeared. In 1875 the Official Solicitor to the Supreme Court of Judicature was created by an Order of the Lord Chancellor.

Over the 30 years or so leading up to the creation of the new office in 1875, the Solicitor to the Suitors’ Fund had come to assume other functions not covered by his official salary, in that he was willing, with the Court’s approval, to represent infants and lunatics, in addition to those entitled to proceed in forma pauperis, and who were necessary parties to actions that could proceed only if a guardian ad litem (now usually called a litigation friend) was appointed (“representational work”). The object was to prevent a possible denial of justice through failure to secure representation for a party under disability. Such costs as he earned in such proceedings arose entirely in the course of his private practice and he was entitled to keep the profits without prejudice to his official salary. This representational work was carried over to the new Office of the Official Solicitor to the Supreme Court of Judicature and had extended to those whose estates fell to be administered by the Masters in Lunacy. This too was a part-time appointment, carried on in private practice.

At the end of the Great War the office had grown considerably and by 1919 the office had virtually become a full-time one. Thus followed the Official Solicitor Act 1919 and the appointment became full-time. Supporting staff became part of the staff of the Supreme Court, graded and paid as Supreme Court Clerks according to the nature of their work. It was not until 1981 that the office became a statutory office and renamed the Official Solicitor to the Supreme Court.

In 2001 some of the representational work of the office (acting for minors being the subject of disputes in family proceedings) was transferred to a new organisation (see below).

When I joined the OS in 1973, the office was well established in its representational work acting for patients, minors and others in civil proceedings, and the office had also amassed a significant caseload of receiverships. It has been recorded that there were 700 receiverships in 1924, increasing annually. A booklet published by the OS in 1972 shows that he had a staff of about 150 with the largest block of staff acting as receiver for some 3,800 patients, many of whom were elderly suffering from dementia, while the second largest block of staff were employed in the representational work. By 1980 there were about 200 staff plus typists (there were many more typists before the days of the word processor) and messengers. This increase was largely due to an expansion in the litigation services performed by the office, much of which was accounted for in representing minors in wardship and family litigation. In 1991 this was drastically reduced by the Children Act 1989, which virtually ended the wardship work. There are currently around 170 staff, of whom 19 are lawyers (including the OS/PT and his deputy), covering both OS and PT work.

The Court of Protection
The origins of the Court of Protection (COP) go back to the Statute de Prerogativa Regis of 1324. This enacted that “the King shall have the custody of the lands of natural fools, taking the profits of them without waste or destruction, and shall find them their necessaries, of whose fee soever the lands be holden; and after the death of such idiots he shall render it to the right heirs, so that such idiots shall not be aliene, nor their heirs shall be disinherited.” It also enacted that “the King shall provide when any, that before-time hath had his wit and memory happen to fail of his wit, as there are many, that their lands and tenements shall be safely kept without waste and destruction, and that they and their household shall live and be maintained competently with the profits of the same … and the King shall take nothing to his own use. And if the party die in such estate, then the residue shall be distributed for his soul by the advice of the ordinary.” Here we see the distinction between the idiot (mentally handicapped with no prospect of recovery) and the lunatic (who might enjoy lucid intervals and even recover). Theobald on the Law Relating to Lunacy (1924) states that in course of time, so far as the Prerogative was concerned, idiots became merged in lunatics.

There has been a long line of legislation leading to the Mental Capacity Act 2005. The terminology has also substantially changed, so examples of old legislation – The Idiots Act 1886, the Lunacy Act 1890, the Mental Deficiency Act 1913 – all now seem rather odd.

However, the readers of this article will note with interest that Theobald points out the class of persons that became subject to the jurisdiction of the Judge in Lunacy was very wide, and as well as lunatics found by inquisition, or not so found but detained as lunatics, included persons “who are in no sense lunatics, but whose mind has become weakened by old age or illness so as to render them unfit to transact business...” The Mental Deficiency Act 1913 further widened the class to defectives within the meaning of that Act, and included idiots, imbeciles, feeble-minded persons and moral imbeciles.

The Masters of the Court of Protection only really became judges of first instance after the Lunacy Act 1890, since when the ‘modern’ Court of Protection began to take its shape.

Interestingly, there was a split jurisdiction until the Mental Health Act 1959 took effect in 1960. This was part statutory and part inherent. The 1959 Act ended the inherent jurisdiction, which theoretically could formerly regulate matters concerning the body other than detention for treatment etc. The COP was thereafter restricted to dealing with the financial affairs under the statutory jurisdiction. This continued in the Mental Health Act 1983. The twist is that jurisdiction to handle health and welfare issues is coming back under the Mental Capacity Act 2005. Though statutory rather than inherent, this particular pendulum hovered one way for over 600 years, the other for only about 45 years, and, in a year or two, the new COP will have full powers to regulate the body, as well as the patient’s estate.

During that 45-year period, and particularly in recent times, the inherent jurisdiction has been making a comeback through the power of the High Court to make declarations as to whether an act is or is not lawful, and it has become common place for major health and welfare decisions to be made in the High Court for persons lacking capacity. The practices developed there will undoubtedly be carried over into the new COP under the new jurisdiction.

Much of this period of change is a reflection of the developments in our society and the need to meet new or evolving requirements – in particular, the view society now takes of vulnerable people. It is, however, also interesting to take a view of the reorganisations over recent times from bottom up. Yes, there will have been strategic incentives in the restructuring, such as the desire to place the management of all private monies under one roof in the early 1980s. Let us follow the fortunes of the substantial group of staff at the OS who actually undertook receivership work and related services throughout the early and middle part of the 20th century. Then, in 1983, they picked up their files, pens, pencils, tea cups, and so on, and walked across Lincolns Inn from Chancery Lane to the PTO, where they were renamed the management division of the COP. At the same time, all the staff at the COP, including the master, marched down from Store Street to the PTO, also with their files etc, where they were known as the COP protection division (which supervised receivers), and met up with the old OS staff to form a somewhat expanded COP in the PTO.

In 1986, the original group from the OS transferred from the COP to the PT and ceased to be staff of the management division of the COP and became staff of the receivership division of the PT, while the former staff of the COP became the protection division of the PT. At a stroke, the COP drastically reduced in size, while the PT had a massive injection of new blood. Actually, nobody really moved in 1986; the tea cups remained where they were. Indeed, the management of the trust work continued largely untouched, though the need for the PT to undertake trust work was falling, effectively representing a shift of work into the private sector.

The reorganisations in the 1980s and the public trusteeThe Office of the Public Trustee was created under the Public Trustee Act 1906, and the appointment to this office has always been statutory. Despite the considerable success of the office for very many years, the need for the provision of a public body that could be considered by testators as a safe appointment as executor in a will or codicil, or as trustee of a trust, has over time been eroded by the availability of alternative suitably qualified professional help in the private sector. In 1972, the Hutton Report recommended closure of the PT, and proposed that existing cases be transferred to corporate trustees with the remainder of the work to be transferred to the OS. Negotiations did not achieve this.

In 1983 the Court of Protection was relocated within the Public Trustee Office, which later became known as the Public Trust Office. At the same time, the receivership work of the OS was transferred to the PTO, initially managed in a division of the COP itself. Additional responsibilities were subsequently given to the Public Trustee in 1986 who then acted as receiver of last resort, performed judicial functions as authorised by the Court of Protection rules, dealt with the registration of enduring powers of attorney, and received notices on death previously required to be served on the treasury solicitor on behalf of the president of the family division. As a side issue here, a certain amount of work formerly undertaken by the OS, involving the administration of the estates of deceased persons for the use and benefit of patients for whom the OS acted as receiver, naturally now found its way to the PT (under the 1906 Act). The PT had also came to accept new work as a trustee of last resort, thus providing a similar and overlapping service to that which had for some time been developing at the OS, although the work taken on by the OS tended to involve estates and trusts that were the subject of contention, and often required the official solicitor to be a party to court proceedings. The PTO also incorporated the Court Funds Office, and had certain responsibilities for investment advice and pension funds.

The Quinquennial review of the PTO in 1999 led to its closure and substantial changes referred to below.

Following the closure of the PTO in 2001, that original group from the OS, and the original group from the old COP in Store Street, both physically moved (together with the master and supporting staff) to Archway in north London to form the new PGO, where they became the receivership division and protection division of the PGO.

The reorganisations in 2001
A statement was issued by the Lord Chancellor in December 2000 and this is an extract: “In future, the PTO’s functions will be carried out by the organisations best placed to provide them. From April 2001, trust work will be transferred to the Official Solicitor’s Office, and the Court Funds Office to the Court Service. The current mental-health functions (protection, receivership and enduring powers of attorney) will be carried out by the Public Guardianship Office (PGO) – a new organisation, which will be sited within the Court of Protection. In several key areas – for example, collection of accounts, and last resort receivership – your responses have helped to develop my plans: this was genuine consultation to build a better future.”

The offices of the OS and the PT are now housed in one office building, but they continue to have separate corporate functions even though one person may be appointed to hold both offices. Thus, the trust division of the PTO was, from 1 April 2001, merged with those parts of the office of the OS that remained after the formation of the Children and Family Court Advisory and Support Service (CAFCASS). CAFCASS was set up to provide representation for children in family proceedings that drew its work from the OS, the Probation Service and the existing panels of guardians ad litem around the country. This created a single organisation covering England and

Wales, encompassing the Family Court Welfare work of the former 54 Probation Committees, and the former 57 GALRO panels, plus the guardian ad litem work at the OS that provided representation for minors in family proceedings concerned with their welfare.

The combined service commenced its activities on 1 April 2001. When the OS guardian ad litem work transferred to this service, some of his staff also transferred to CAFCASS, thus the organisation comprised Family Court Welfare Officers, Guardians ad Litem, and caseworkers from the OS, though it appears the latter have now dwindled to a very small number who are being absorbed in the larger organisation.

Notwithstanding the loss of the child-centred work to CAFCASS, the OS still has substantial responsibilities to provide representation for persons lacking capacity in civil and family proceedings and in the COP, and family work in particular is fast growing. Some of this will be conducted in the new COP in due course. Please see the OSPT website for further details and practice notes: www.offsol.demon.co.uk.

By 1994, the receivership division was handling 2,600 cases, a falling case load, and the protection division 27,800 cases. However, by 2003, the receivership division had only 600 cases, and the protection division had 28,800 cases. This reflected a deliberate policy of moving cases out of the public into the private sector, that is, cases from the receivership division moved to ‘panel’ receivers in private practice, and new appointments in the public sector became severely restricted. The staff have now largely moved on. Thus, in a reversal of what happened after the Official Solicitor Act 1919, when representational and mental health work came into the public sector, we have seen a trend to put trust and mental-health work back to the private sector.

In future we shall see the appointment of deputies under the 2005 Act and, in view of the inclusion of health and welfare issues, the options are wide and complex. How, in the short term, this will work in practice remains to be seen. Indeed, I have no doubt there will be pressures in years to come to review the day-to-day arrangements for managing this area of work, with public-sector workers moving about between departments, or public departments being relabelled, while pressures to shift the boundary between the public and private sectors are unlikely to disappear. The work of the new deputies will doubtless be organised and reorganised. So watch out for those roundabouts and pendulums.

However, putting this in a proper perspective, the evolution of the law (in keeping with social, economic and political factors), which once defined idiots, lunatics, imbeciles, feeble minded or defectives, but will now refer to ‘people who lack capacity’, dramatically reflects the way in which society now treats such persons, and thus regulates their welfare and financial affairs.

Keith Lock is a solicitor at the Office of the Official Solicitor and Public Trustee.