SCC v MSA & Ors (2017)

Keywords: Rule 3A representatives

MSA was a young man with profound learning disabilities who was unable to communicate or mobilise independently.

He was being cared for in his family home with a package of care commissioned by S CCG. 

That package of care involved MSA’s deprivation of liberty which had been authorised by the court as being the least restrictive option and in his best interests.  The circumstances of his care included:

  • Not having external carers in the home;
  • Being frequently strapped into his wheelchair;
  • Spending time in a padded room with a closed door that he was unable to open;
  • And being restrained during personal care interventions.

MSA’s mother, JA, was his primary carer in these circumstances. When the commissioning CCG applied to COP for authorisation of the deprivation of liberty, the issue arose as to whether his mother would be a suitable candidate to be his rule 3A representative. [In the event, in this case, the issue became academic because JA did not wish to act as his Rule 3A representative and the Official Solicitor did so throughout. Nevertheless Bellamy DJ provided useful guidance on the issue.]

The judgement sets out the relevant Court of Protection rules:

  1. Rule 3A of the Court of Protection Rules 2007 (COPR) requires the court to consider in each case how best to ensure that P’s participation in proceedings is secured. Rule 3A(2)(c) provides that the court may direct that:-

“P’s participation should be secured by the appointment of a representative whose function shall be to provide the court with information as to the matters set out in Section 4(6) of the Act and to discharge such other functions as the court may direct”.

  1. Under Rule 147 titled “Who may act as a Rule3A representative for P”:-

“A person may act as an accredited legal representative or representative, for P, if that person can fairly and competently discharge his or her functions on behalf of P”.”

Thus, the criteria for appointment as a Rule 3A representative is that a person can fairly and competently provide information to the court about the matters relevant to determining P’s best interests and, more broadly, “represent” them in the proceedings.

The Official Solicitor submitted that it would be “manifestly inappropriate” for MSA’s representative to be “the very person responsible for implementing restrictive care arrangements that constitute a deprivation of liberty, in circumstances where those arrangements go well beyond mere 24 hour supervision.”

The CCG, on the other hand, took the view that JA would be suitable as “she is fully engaged with statutory services and care providers and has a history of advocating on MSA’s behalf. There is nothing in her conduct to date by which JA has demonstrated she would be unsuitable if willing to so act.”

In coming to a view, Bellamy DJ considered the principles already set out on Rule 3A representatives in Re NRA& Ors [2015]and Re VE [2016]that: 

  • Theinterest of devoted family members or friends in P’s situation does not necessarily constitute a conflict of interest
  • Thattheir experience of advocating for P and close knowledge of him/her may make them particularly well placed to promote P’s best interests
  • Thatthe issue of whether a family member or friend is suitable to represent P will be specific to the facts of each case

Bellamy DJ took the view that

“it must be right that where there is any possibility (even if it is perceived rather than actual) that a conflict of interest will arise, the appointment of a representative or litigation friend must be closely scrutinised by the court.” (para. 27)

Consequently, he concluded that the issues relevant to deciding the suitability of a family member as a Rule 3A representative were:

  • Therelationship between the family member and P
  • Theconduct, if any, of the family member and any available evidence that he or she has acted in a way which did not fairly and competently represent P
  • Thenature of the restrictive care package and the role that the family member would play in such regime.

He stressed that, in case such as this, where a family member is responsible for implementing care, whichincludes significant restrictive physical interventions, particular care would be required in the exercise of the court’s discretion as to suitability to represent P. However, he concluded that, even in such a case, there is no blanket objection in principle to a family member undertaking the role of Rule 3A representative.

The court must instead satisfy itself that the proposed representative can:

  •  Elicit P’s wishes and feelings and making them and the matters mentioned in Section 4(6) of the MCA known to the court without causing P any or any unnecessary distress;
  • Critically examine from the perspective of P’s best interests and with a detailed knowledge of P the pros and cons of a care package, and whether it is the least restrictive available option; and
  • Keep the implementation of the care package under review and raising points relating to it and changes in P’s behaviour or health” (para.30)

This judgement is likely to reduce pressures around the funding of professional Rule 3A representatives, whether in the guise of Accredited Legal Representatives (ALRs), the Official Solicitor or other potential litigation friends (such as IMCAs or other professional representatives). However, as a result, it risks undue pressure being placed on family members to serve in the capacity of Rule 3A representative and, as the judgement recognises, runs risks of failing to provide sufficient independent scrutiny of P’s situation unless extreme care is taken by the court in considering such an appointment.

Whilst it may reflect a gradual shift towards a greater recognition of the potential benefits of informal carers/family members and their knowledge of P, it may also reflect a certain pragmatism on the part of CoP in the face of a severe lack of public funding to support an adequate supply of professional Rule 3A representatives.

Full transcript at: http://www.bailii.org/ew/cases/EWCOP/2017/18.html