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Alastair Pitblado – an appreciation

[We are very grateful to Jim Beck of the Office of the Official Solicitor, and his colleagues, for preparing this much fuller appreciation of Alastair Pitblado than the very short one from Alex that appeared in the immediate aftermath of his death]

Alastair Pitblado was the Official Solicitor to the Senior Courts from the date of his appointment in 2006 until his death on 24 June 2018. Alastair’s tenure therefore covered all the period from the commencement of the MCA 2005 until a few weeks before the judgment was given by the Supreme Court in the landmark case of An NHS Trust and Ors v Y and Anor [2018] UKSC 46^M.

Alastair also held the office of Public Trustee (appointed under the Public Trustee Act 1906) from October 2016 until his death.

During his tenure as Official Solicitor, Alastair made a very significant contribution to the development of mental capacity law; he was very involved in many of the key issues and debates. His influence can be found in many of the leading judgments made in relation to personal welfare cases in the Court of Protection.

Alastair studied law at Oxford and was called to the bar in 1974. He was in private practice as a barrister for some 14 years, largely undertaking family work as well as mixed common law, crime and general chancery practice. He then joined the Government Legal Service (‘GLS’) in 1988 where he served in various departments including the Department of Trade and Industry, the Office of Director General of Telecommunications and at the Treasury Solicitor’s Department where he worked on loan to the Registry of Friendly Societies. Those who worked with Alastair would undoubtedly recognise the experience and insight that he brought from those roles which was evident in the clarity of his analysis and construction of statute.

In 2006 Alastair was appointed as Official Solicitor to the Supreme Court (now Official Solicitor to the Senior Courts) by the Lord Chancellor under section 90 Senior Courts Act 1981, becoming the 11th Official Solicitor since the creation of the office in 1875.

Although he was a permanent civil servant of the state, as both Official Solicitor and Public Trustee he was an independent statutory officer holder. As such he was not accountable to ministers in the decisions he made on behalf of the individuals whose interests he was appointed to protect, although he remained accountable to ministers and the Ministry of Justice for the efficient and effective conduct of his office. Given Alastair’s record in office, few could have been left with any doubt about his independence and throughout his tenure he was both an advocate for the rights of his vulnerable clients and a fierce guardian of the independence of his statutory offices.

In his appreciation of Alastair in the July 2018 edition of the newsletter, Alex alluded to the fact that Alastair was not frightened to adopt positions which were sometimes controversial and not always popular with practitioners. This was particularly true in respect of the legal test for capacity to make decisions about contact, and to consent to marriage and or sexual relations where Alastair opposed a person-specific approach. It was also true in respect of the position he took in relation to the role of the courts in making decisions regarding the continuance of treatment for individuals in Prolonged Disorders of Consciousness (PDOC).

Alastair will however, perhaps be best remembered within the legal community for his role in the development of mental capacity law in relation to the deprivation of liberty.

I would suggest that the common thread to Alastair’s approach to his work is to be found in the statement he made R (on the application of S) v Director of Legal Aid Casework [2015] EWHC 1965 (Admin)^B in which he quoted the following words of Baroness Hale of Richmond in her 2004 Paul Sieghart Memorial Lecture ‘What can the Human Rights Act do for my Mental Health?’

human dignity is all the more important for people whose freedom of action and choice is curtailed, whether by law or by circumstances such as disability. The Convention is a living instrument … We need to be able to use it to promote respect for the inherent dignity of all human beings but especially those who are most vulnerable to having that dignity ignored.

The protection of the most vulnerable members of society, particularly those who were unable to communicate their wishes and feelings, was undoubtedly a major concern for Alastair, reflected in both his approach to deprivation of liberty and to the treatment of people in PDOC.

In relation to Deprivation of Liberty cases he was particularly concerned that the adoption of the ‘comparator test’ applied by the Court of Appeal in Cheshire West and Chester Council v P [2011] EWCA Civ 1257^M and P and Q [2011] EWCA Civ 190^M removed protection for the most profoundly incapacitated and vulnerable individuals and left them without the safeguards of Article 5 of the ECHR. Alastair was successful in his appeals to the Supreme Court, and reported as P v Cheshire West & Chester Council; P & Q v Surrey County Council [2014] UKSC 19^M, which established what is often referred to as the Cheshire West test.

This decision created significant logistical problems for local authorities, NHS bodies and the courts which has recently led to draft legislation being introduced in Parliament. None of these resulting consequences would have deterred Alastair from taking a course of action which he considered necessary to protect the rights of those who lacked capacity and to safeguard their welfare.

I heard Alastair on a number of occasions comment upon his experience of visiting the Royal Hospital for Neuro-disability in Putney. I believe the experience impressed upon him the importance of guarding against discrimination which can arise from viewing the lives of those with profound physical and mental disability from the perspective of a person without such disabilities. He was concerned that decisions around the withdrawal of treatment from this vulnerable group of patients could be influenced by considerations of resources rather than the individual’s best interests. He felt that it was necessary to maintain the involvement of the court in such decisions to ensure both safety of diagnosis and the scrutiny of best interests’ decision making leading to the withdrawal of life sustaining treatment. In this regard, Alastair was ultimately unsuccessful, with the Supreme Court handing down its judgment in Y less than 2 months after his death. Only time will tell if his concerns in this regard were unfounded.

Alastair placed great weight on the importance of upholding an individual’s right to autonomy and to make decisions which the state and its public bodies might consider unwise decisions. He opposed a person-specific test in relation to capacity for consent to sexual relations as he saw it as a threat to both individual autonomy and to the correct assessment of capacity in this domain. His position was vindicated by the Court of appeal in IM v LM & Ors [2014] EWCA Civ 37^M. For similar reasons he opposed a person-specific approach to the assessment of capacity to make decisions as to contact with others. His disagreement with the views expressed by the Court of Appeal relating to capacity to make decisions over contact in the judgment handed down in PC and Anor v City of York Council [2013] EWCA Civ 478^M are well known. Unusually he commented upon the judgment in an article which was published in August 2013 by this Newsletter “The decision of the Court of Appeal in (1) PC and (2) NC v City of York [2013] EWCA Civ 478”. In that article he argued that the approach advocated by the Court of Appeal risked encouraging ‘paternalistic attempts to deprive the disabled with capacity of their autonomy’.

Notwithstanding the debilitating impact of his own illness and the discomfort he must have endured, Alastair continued to be involved in the work of the office right up to the date of his final admission to hospital. His attendance at the Supreme Court during the Y hearing, was a testimony to his commitment to his work. He leaves behind a valuable legacy of case law for which he can rightly be given credit.

Alastair went about his work in an understated and quiet way and gave little away about his private self, other than his very wry sense of humour. It was only after his death that many of us became aware of his many individual acts of kindness and support for current and former work colleagues at difficult or critical times in their careers. Zena Soormally, who worked at the OS but who is now a solicitor with Simpson Millar, commented:

When I was starting out he was supportive and kind to me, and he was one hell of a fighter for his team.’ Alastair is remembered by colleagues across the OSPT (the joint office of the Official Solicitor and Public Trustee) as a leader who fought strongly for his staff and supported them to deliver the best possible service for his vulnerable clients. He led from the front, always. His legacy at OSPT is the commitment and passion that all his staff demonstrate daily.

I will conclude with Alastair’s views about the role of the litigation friend set out in his statement to the Court in R (on the application of S) v Director of Legal Aid Casework [2015] EWHC 1965 (Admin)^B:

The task of a litigation friend is difficult, sensitive and burdensome. It appears to me that all too often those impatient with the vindication of the rights of those who lack capacity seek to minimise what is entailed in being litigation friend. The individual is likely to be difficult to engage with and may lack understanding as to why, and resent that, they have a litigation friend and what is the role of their litigation friend. A person’s ability to engage at all often depends upon establishing a relationship of trust and it often takes time to establish that relationship.

The duty of a litigation friend is ‘fairly and competently’ to conduct the proceedings in the best interests of the adult or child concerned…

Once a person accepts appointment as litigation friend they are responsible for giving instructions to the protected party’s solicitors …… and for making the decisions about the conduct of the proceedings. They rely on the solicitor retained for the protected party (and counsel where instructed) for legal advice in order to inform themselves fully of the nature of the case, but it is the litigation friend who must instruct the solicitors of the course to be taken on behalf of the protected party. The litigation friend “steps into the shoes” of the protected party and is charged with making often very important decisions for the protected party, in the protected party’s best interests. ………………

A litigation friend is under a duty as a matter of law to make an assessment of the protected party’s or child’s best interests in the litigation, and to give instructions to the solicitor accordingly. Inevitably therefore in many cases the litigation friend is not able realistically and properly to advance the case which the protected party or child would wish the litigation friend to instruct the solicitors to advance.

Although the litigation friend must take account of the protected party’s or child’s views they may not abrogate their duties as litigation friend, and therefore those views cannot be determinative of the instructions given the solicitor. The touchstone is the litigation friend’s assessment, with the benefit of appropriate advice, of the protected party’s best interests in that regard.

The litigation friend should always ensure that those views are put before the court. The correct course for a litigation friend is to instruct the presentation of any realistic arguments and relevant evidence in relation to the issues before the court. The criterion is whether the point is reasonably arguable, not whether it is likely to succeed. It is not in the interests of the protected party or child, or in the interests of justice, for arguments that do not meet that criterion to be made. Considerable care must be taken in making judgements, with the benefit of sound legal advice, about how to conduct individual cases.

…If the litigation friend does not have the moral courage to advance only realistic arguments rather than those arguments which the protected party wishes advanced, an important purpose of interposing a litigation friend between the protected party and both the court and the other party or parties is lost.

Which for those that worked with him reflects both his experience as Official Solicitor and his approach to his work, and his commitment to this for which he will be much missed.

Jim Beck

Healthcare and Welfare Lawyer at the Office of the Official Solicitor

I am grateful to the assistance given by colleagues in the office who contributed to the preparation and drafting of this appreciation.