Law: Trust me, I'm a lawyer

When legal ethics get messy, the buck stops with Laurence Oates, the Official Solicitor.
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The Independent Culture
`Trust me I'm a lawyer," says the wooden marker sitting on Laurence Oates's desk. In his case this isn't a glib statement, rather it is intended as a reminder that not everyone feels comfortable in the presence of their legal adviser. Mr Oates is, after all, the newly appointed Official Solicitor, and trust is probably the most critical ingredient of his work. His guidance is sought by the courts in the most sensitive and sometimes impossible cases. Many of the people represented by him - children and those lacking mental capacity - have no choice but to place their trust in the Official Solicitor.

Last week, his office was asked to represent the interests of a baby girl whose mother had been diagnosed HIV positive. Camden Council had applied to the High Court for permission to test the child for Aids against her parents' wishes. Although the mother had been found to be HIV positive, she was continuing to breast feed the child and the local authority had therefore argued that this posed a health risk to the child.

This week, having heard from Mr Oates and other interested parties, the court will make its final decision.

The case perfectly illustrates how the work of the Official Solicitor is not always properly understood by the public. Mr Oates wants the people to know his office is not there as an instrument of the "nanny state". He adds: "I don't seek clients. We get brought in when the courts are involved in these intractable cases and need our help."

Strictly speaking, the principal role for Mr Oates is the provision of the professional services of a lawyer to people who can not represent themselves in legal proceedings.

Mr Oates has also found himself in the public eye over the long-running custody battle between Ian McEwan, the Booker prize winner, and his former wife, Penny Allen. Mr McEwan called in the Official Solicitor to help in the return of his 13-year-old son, who was last week illegally residing with Ms Allen in France. Ms Allen has said she is determined to resist her husband's efforts regarding the children. Her decision follows an Oxford County Court ruling, last month, when Mr McEwan was granted sole custody of both their children. Since the deadline for their return expired last week, the eldest boy, 15, has rejoined his father in Oxford.

Mr Oates said that the child abduction unit, for which his office has responsibility, had become involved in the case after he had been contacted by Mr McEwan's lawyers. He said his department was the UK's "central authority" under The Hague Convention, the international agreement which provides for the return of children who have been abducted in breach of a country's court orders.

The McEwan case highlights the variety of situations that can bring in the legal expertise of the Official Solicitor. "The role of the Official Solicitor," says Mr Oates, "is not really well known. But there's no reason why it should not be exposed to public scrutiny. In fact, I would expect benefits from that."

In other cases, the issues might only appear to present ethical difficulties for the court. There are, says Mr Oates, times when the coherent wishes of an adult must be paramount. He says: "If a person of sound mind takes a decision, then doctors have to respect that decision. If a Jehovah's Witness, or whoever, refuses a blood transfusion or won't accept medical treatment, there is no way the courts can force that person to have something against his will."

It was the case of Tony Bland in 1992 which first brought the Official Solicitor to the public's attention. Mr Bland had been badly injured in the Hillsborough football stadium tragedy. His injuries had left him in a persistent vegetative state (PVS). His parents finally asked doctors to switch off his life support machine. The case went to court and the Official Solicitor was brought in to represent the interests of Mr Bland.

In the end, the parents' wishes were respected and the court allowed the doctors to withdraw nourishment. The case was important because it established a precedent for PVS cases being referred to court.

For the Official Solicitor there is no right and wrong. The issue is simply what is the best that can be done in, usually, extremely difficult circumstances. Mr Oates, who began his career as an employment barrister and then rose to prominence as a government legal advisor, has only been in the job three weeks.

The McEwan and "Baby Aids" cases are just two examples of the kind of high-profile work in which Mr Oates has already been involved.

However, if he had any illusions about the extraordinary demands which will be placed upon him he need only have spoken to his predecessor, Peter Harris. Last month, Mr Harris found himself in a heart-wrenching case which neatly demonstrates the ethical quagmire in which lawyers from the Official Solicitor's office can find themselves.

Mr Harris was asked by the court to represent a 15-year-old girl who had refused to allow doctors to carry out a life-saving heart transplant. Mr Harris was called in three days after doctors had recommended urgent surgery. He telephoned the judge, Mr Justice Johnson, to say that although the girl knew she would die if she didn't have the operation she had told one of his lawyers she did not want someone else's heart.

At the time, Mr Harris said: "She understood that she would die without the operation, but she did not want to die."

Eventually, the judge ruled that the doctors should make a clinical assessment as to what was in the teenager's best interests. This, in effect, over- ruled the girl's own expressed wishes.

It is these and other "right to die" cases, where people have clearly expressed themselves opposed to medical treatment, even if they risk death, that are at the cutting edge of the legal-medico lawyer's range. While this work will continue to grow as more and more cases come to the courts, the Official Solicitor's role as a guardian ad litem to children is expected to diminish.

The creation of the new Children and Family Court Advisory Service will combine the family court welfare functions provided by probation officers, the children's branch of the Official Solicitor's office and local authority's guardian ad litem role. While acknowledging that this will end his involvement in many children's cases, Mr Oates said that the principle behind the new service was widely accepted. "I haven't heard a dissenting voice," he stressed. "But what must be clear is the demarcation between our continuing role and that of the new service."

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