Case Summary: SCC v MSA [2017] EWCOP 18

Case

SCC v MSA [2017] EWCOP 18

Relevant Topics

• Rule 3A representative – in particular family Rule 3A representatives who implement restrictive care regimes.
• Deprivation of liberty.
• Article 5 Rights – Right to liberty and security.

Note: A Rule 3A representative is the name given to a person by the Court who is willing and able to oversee a P's care and support needs and tell the Court of any changes to the P's health and/or needs.

Practical Impact

A family member who is involved in a P's care and deprivation of liberty can act as a Rule 3A representative. However, if the possibility of a conflict of interest is present commissioners, providers and care co-ordinators should, as far as it is reasonably practicable, ascertain whether the appointment is appropriate. In making their consideration, commissioners, providers and care co-ordinators should consider whether in the circumstances that the representative can:

• Elicit P's wishes and feelings and matters mentioned in Section 4(6) MCA known to the Court without causing unnecessary stress to P.
• Critically examine from the perspective of P's best interests the care package and whether it is the least restrictive option.
• Keep the care package under review and raise any changes to P's behaviour and/or health.

Summary

DJ Bellamy.

MSA has profound learning disabilities and is subject to a deprivation of liberty in his family home. The application brought by the Official Solicitor concerned whether MSA's mother should act as his Rule 3A representative due to her involvement in the delivery of his care and deprivation of liberty. The SCCG's application took the position that the facts of the case did not disqualify MSA's mother from acting as his representative.

The Judge considered the Rule 3A of the Court of Protection Rules 2007 and the principles of NRA and VE.

It was concluded that in cases such MSA's, where there is a possibility of a conflict of interest, the Court must scrutinise the appointment and be satisfied that the representative can promote P's Article 5 rights. If the Court is satisfied, following scrutiny of the appointment, then there should be no blanket ban on the family member's appointment as representative.

MSA is a young man with profound learning disabilities who is deprived of his liberty at his family home. In April 2017 the Court authorised an Order allowing MSA to reside and receive care at his family home in accordance with the package of care commissioned by the SCCG which was in his best interests.

An issue arose in the course of proceedings as to whether MSA's mother, JA, could or should act as his Rule 3A representative. There were two separate applications in the case:

1. The Official Solicitor's position was that a Rule 3A representative should not be a person who has significant involvement in a P's care with acts that constitute a deprivation of liberty. In the Official Solicitor's opinion, MSA's case presented a clear potential conflict of interests.
2. The CCG's position was that there is nothing in the facts of MSA's case that would disqualify JA from acting as his Rule 3A representative. The fact that a family member has firm views about P's best interests and plays a part in depriving a P of their liberty does not debar a family member from acting as P's representative.

It should be noted that JA did not wish to be appointed as MSA's Rule 3A representative and as such this application could be said to be academic.

DJ Bellamy took into consideration the judgment of Charles J in NRA and VE and did not wish to depart in any way from the guidance he gave. In particular, DJ Bellamy gave consideration to the principle in NRA that the interest of devoted family member/s does not give rise to an adverse interest to P and a conflict of interest, or otherwise means that they cannot properly and effectively promote P's best interests. However he concluded that each case is fact specific and where there is any possibility that a conflict of interest will arise, the appointment of the representative must be closely scrutinised by the Court.

DJ Bellamy agreed with the Official Solicitor's submission that where, a family member is responsible for providing care that includes significant restrictive interventions, the Court should take great care in exercising its discretion as regards to P's representation in proceedings pursuant to Rule 3A. It was concluded that if the family member who is so involved puts themselves forward as representative, (subject to the Court's scrutiny and satisfaction that the representative can adequately represent P's wishes and act in their best interests), there can be no blanket objection, in principle, to their ability to undertake that role.

DJ Bellamy concluded that JA's unwillingness to act as representative meant the Official Solicitor, in any event, will continue to act as MSA's representative.

In circumstances where a family member acts as a Rule 3A representative and are involved in the care of P which includes significant physical restriction they can (subject to the Court being satisfied with the appointment) act as representative. The Court must be satisfied in these circumstances that the representative can:

 i. 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 unnecessary distress;

ii. 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

iii. Keep the implementation of the care package under review and raising points relating to it and changes in P's behaviour or health

then such appointment can be made.

All of these factors go to the essence of P's Article 5 rights, and providing that the Court is satisfied that the representative can and are being adequately protected such a role can be undertaken by the family member.