The role of 1.2 representation

The Mental Capacity Act 2005 is a law that protects the rights of individuals who are unable to make decisions for themselves.

The law acts to safeguard individuals and to make sure that any decisions that have to be made about them are made in their Best Interests. Everyone has to follow the Mental Capacity Act (MCA).

Sometimes the care, support and accommodation that an individual needs to keep them well and safe means that they are “under continuous supervision and control” and “not free to leave”.

If this is the case for someone who cannot consent to this, then the individual is considered to be “deprived of their liberty”.

Just because the term “deprivation of liberty” is used does not mean that someone is doing something wrong.

The care and support being given to the individual concerned may be entirely appropriate and necessary to promote their wellbeing and to keep them safe.

An example of this is a person with a learning disability who lacks insight in relation to risks in their local community e.g. road safety, and they require support staff to be present to ensure they are safe and able to access their local community.

However, it does mean that the situation needs someone independent to look at it to make sure that the individuals rights are being protected.

Having someone independent to look over the care arrangements means that a fresh eye can look at the care and support being offered and consider whether there may be less restrictive ways of providing the care. It is not lawful to deprive someone of their liberty unless this independent view has been taken.

If the individual is in a CQC registered care/nursing home or hospital, the local authority will ask an independent professional, a Best Interest Assessor (BIA), to look at the individual’s situation and come to a view about whether the deprivations should be authorised. This is known as a DoLS.

If the individual is living in their own home or supported living, only the Court of Protection can authorise this, using what is known as the “Community DoL”.

Authorisations last for 12 months and require renewals via the same process.

You have been given this leaflet as part of the application for a Community Deprivation of Liberty application.

What is a 1.2 representative?

In this Community DoL process, the individual who is deprived of their liberty under the Mental Capacity Act must have a representative appointed by the court and this individual is known as the “1.2 representative” also known as 1.2 rep.

The 1.2 representative’s role is to make sure that the individuals views are properly considered in the court process, so the 1.2 representative needs to be someone who knows the individual well and who is in regular contact with them.

Often, the 1.2 representative is a member of the individual’s family or one of their friends.

If the individual does not have a family member or friend who can be their 1.2 representative, an advocate will be appointed for the individual.

The 1.2 representative is normally someone who is not a paid carer for the person or lives in the accommodation providing care for the support arrangements, for example a person health budget holder.

Why have I been asked to be a 1.2 representative?

You have been asked to be a 1.2 representative because of the relationship that you have with the individual and because of the knowledge that you have about their life.

You will have knowledge about the care and support that they receive and about them being deprived of their liberty.

As a 1.2 representative, you will help the Court of Protection in reaching a decision by reviewing what NHS Devon have proposed for the individual.

You will be asked to do this in the individuals ‘best interests’, which means that you will be asked to act based on what the individual would think and want rather than on what you or others think.

You will be asked to think about the pros and cons of the individuals care, to compare options and to make sure that what is suggested is the least restrictive option that is available.

The role as 1.2 representative lasts for 12 months when authorised by the Court of Protection, if you wish to remain a 1.2 representative you will be required to apply every year, via the renewal application to the Court of Protection.

What does the application to the court look like and what do I have to write?

The Community DoL process involves the individual’s allocated practitioner from NHS Devon completing a number of forms.

The main form is called a COPDOL11 and you will be asked to complete part of this form referred to as Annex C which is the last section of the form.

You will also be asked to write a witness statement on a form called a COP24.

The form is straightforward to follow and guides you through the information that you need to record, but you need to include:

• Who you are in relation to the individual e.g. sister /partner.
• You have been given information about the role of the 1.2 representative and have had the chance to ask any questions you may have about the role, and that you are happy to be the 1.2 representative.

You will be provided with a copy of the following

• Care and Support Plan
• Best Interest Decision
• Mental Health Assessment (Confirming diagnosis)
• Capacity Assessment
• CoPDoL 11 Application Form

If, having carefully considered all the information to support the application and your reasons for supporting it:

• Whether you think there needs to be an oral hearing (in person). Generally, if the judge has all the information that they need in the application and everyone is in agreement, the judge will make a decision without a hearing. But, if there are any disagreements or disputes, (for example if you do not support the arrangements or someone else is opposed to them), an oral hearing will be needed. You need to state your reasons if you think an oral hearing is needed.
• Any comments you may have on the individual’s capacity to make decisions about their care (you do not have to complete a capacity assessment)
• Any other comments you wish to make that are directly related to helping the Court of Protection determine if the care and support is the least restrictive option and in in the individual’s best interests.

What if I do not feel able to take on the role of the 1.2 representative at this time?

If being the 1.2 representative is not something that you can consider at the moment, please don’t worry.

It may be that another family member or friend could undertake this role.

If not, an independent advocate will be appointed to be the 1.2 Representative to make sure that the individuals views are properly considered in the court process.

You will still be involved in the individual’s life if you decide not to be the 1.2 representative, and able to share your views in relation to care and support arrangements.

Who can I ask for further help?

The allocated CHC Practitioner from NHS Devon will be able to answer any questions that you may have and will be there to support you if you decide to take on the role of 1.2 Representative and provide help in completing the forms.

This information is available to download below: