Deprivation of liberty in family home - family member as Rule 3A representative

Thursday 5 October 2017

SCC v (1) MSA (by his litigation friend, the Official Solicitor) JA (2) and (3) SCCG [2017] EWCOP 18, 20 September 2017, Bellamy DJ

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SCC v (1) MSA (by his litigation friend, the Official Solicitor) JA (2) and (3) SCCG [2017] EWCOP 18, 20 September 2017, Bellamy DJ

On an application for authorisation of the deprivation of liberty of MSA by virtue of arrangements for his care in the family home the court considered whether it was appropriate for his mother to be his Rule 3A representative in the proceedings.

MSA was unable to communicate or mobilise independently, was frequently strapped into his wheelchair, kept for some of the time in a padded room with a closed door, was highly resistive to personal care interventions so that physical restraint was required and did not have external carers in the home.

The Official Solicitor submitted that it was not appropriate for MSA’s mother to be his Rule 3A representative as she was the very person responsible for implementing the restrictive regime. Although MSA’s mother did not wish to be the Rule 3A representative the court gave guidance on the issue.

Under Rule 3A(2)(c) Court of Protection Rules 2007 the court may direct that P’s participation should be secured by the appointment of a representative whose function is to provide the court with information as to the matters set out in s 4(6) MCA 2005 and to discharge such other functions as the court may direct.

The judge held (paras 29 – 30):

  • where a family member is responsible for providing care that includes significant restrictive physical interventions, the court should take great care in exercising its discretion as regards P’s representation under Rule 3A
  • however, there is no blanket objection in principle to a family member or friend who is so involved putting themselves forward to act as representative or litigation friend provided the court is satisfied that they can:
  • elicit P’s wishes and feelings and make them and the matters mentioned in s 4(6) MCA known to the court without causing P 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
    • keep the implementation of the care package under review and raise points relating to it and changes in P’s behaviour or health.
  • these factors go to the essence of P’s Art 5 rights.

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