England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION IN THE MATTER OF THE MENTAL CAPACITY ACT 2005 AND IN THE MATTER OF MSA

		20 September 2017

Introduction and Background

1. SCCG currently commission a package of care provided to MSA, a young man with profound learning disabilities, and who is deprived of his liberty at his family home. Court authorisations have been sought and granted on the basis that it is in MSA's best interests to reside and receive care at his family home in accordance with the package of care commissioned by the SCCG. A final order in this regard was made by me on 26^th April 2017. A review for the authorisation of the deprivation of MSA's liberty is listed for 11^th April 2018.
2. An issue arose in the course of proceedings as to whether or not MSA's mother, JA, could or should act as his Rule 3A representative. At the hearing on 23^rd March 2017 it was submitted on MSA's behalf, by the Official Solicitor, that it would be manifestly inappropriate for MSA's representative in these proceedings and future review hearings 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.
3. Both parties to the issue, MSA (the Official Solicitor) and SCCG filed written submissions in advance of the hearing of 26^th April 2017 and, at the request of the Official Solicitor, the court agreed to consider the appropriateness of JA acting as MSA's Rule 3A representative, irrespective of the question of her willingness or otherwise to act in this capacity.
4. I should record that in this case JA did not wish to be appointed as MSA's Rule 3A representative and while therefore the question posed by the Official Solicitor could be said to be academic, acceded to the request to give some guidance on this issue.
5. Final submissions were received by the court towards the end of May.

Court of Protection Rules

6. 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".

7. 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".

8. Rule 148 provides that a person may only be appointed if he/she consents.
9. Rule 148A provides that:-

"A representative, an accredited legal representative or P may, at any time and without giving notice to the other parties, apply to the court for directions relating to the performance, terms of appointment or continuation of the appointment of the representative or accredited legal representative".

10. Rule 148B gives the court power to prevent a person from acting as a Rule 3A representative or to bring to an end an appointment of a person as a Rule 3A representative or appoint another one:-

"(1) The court may, either of its own initiative or on the application of any person –

(a) direct that a person may not act as a representative or accredited legal representative;

(b) bring to an end a representative's or accredited legal representative's appointment;

(c) appoint a new representative or accredited legal representative in place of an existing one; or

(d) vary the terms of a representative's or accredited legal representative's appointment".

(2) If an application for an order under paragraph (1) is based on the conduct of the representative or accredited legal representative, it must be supported by evidence".

11. Rule 140(1) provides that a person may act as litigation friend for P if that person:-

"a) can fairly and competently conduct proceedings on behalf of that person; and

(b) has no interests adverse to those of that person".

Submissions on behalf of the Official Solicitor

12. In paragraph 5 of its position statement initially filed in relation to the ongoing proceedings the Official Solicitor expressed concern that SCCG did not accept that it is manifestly inappropriate for MSA's representative in these proceedings and future review hearings 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.
13. The Official Solicitor submitted that 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 in proceedings pursuant to Rule 3A. It should be noted that MSA is unable to communicate or mobilise independently, is frequently strapped into his wheelchair, is kept for some of the time in a padded room at his home with a closed door that he cannot open, is highly resistive to personal care interventions so that physical restraint is required, and does not have external carers in the home.
14. The Official Solicitor pointed out that a representative (or litigation friend, being a family member who supported a deprivation of liberty as being in P's best interests) is not an appropriate person to act as RPR as it will be difficult for that person to assist P to exercise her right to challenge her deprivation of liberty and there is a clear potential conflict of interest.
15. In the circumstances of this case the Official Solicitor pointed out JA is one of the key people authorised to implement the deprivation of P's liberty. She is assisting SCCG in the implementation of the care package resulting in P's deprivation of liberty. SCCG sought and obtained court authorisation for the care plan it commissioned and JA and other carers have responsibility for carrying out the acts in the care plan that constitute such deprivation of liberty.
16. For these reasons the official solicitor drew contrast with the scenario considered by the court in NRA and Others [2015] EWCOP 59 and JM and Others [2016] EWCOP 15 which were concerned with more routine living arrangements. In this case MSA is subject to a particularly high degree of restrictions on his physical liberty. There is no independent scrutiny and monitoring of the use of restraint and restrictive measures, for example by the CQC as it would be in a regulated setting or where external carers were involved. For this reason it is particularly important that an independent view is taken as to whether or not the restrictions in the care plan remain the least restrictive option and thus as to the degree of scrutiny required by the court at annual reviews. It is therefore submitted that it is in MSA's interests and required to protect his Article 5 rights that he be represented independently in these proceedings.
17. In summary, the Official Solicitor's position is that the Rule 3A representative should not be a person who has a significant degree of involvement in the acts that constitute the deprivation of liberty. Particularly where those acts include keeping P in a locked room or physically restrained in a wheelchair.

The CCG's Position

18. Attention is drawn to the decision of Charles J in Re VE [2016] EWCOP 16 where it was suggested an explanatory note could be sent to Rule 3A representatives setting out their role. The CCG submit that there is nothing that would prevent JA fulfilling that role in accordance with the note:-

"What you need to do is to consider and decide from that perspective whether P's package of care and support is the least restrictive available option that best promotes P's best interests and then inform the court what you have decided and what P's wishes and feelings about the package of care and support are.

In short, the court is asking you, as someone who knows the position on the ground, to consider whether from the perspective of P's best interests you agree or do not agree that the court should authorise P's package of care and support. This will involve you weighing the pros and cons of that package of care and support, comparing it with other available options and (if appropriate) proposing changes to the applicant authority. For example, if you consider that some of the restrictions it puts in place are unnecessary or inappropriate and should be changed, you should raise this with the applicant authority and, if they do not agree with what you propose, the court".

19. The SCCG argued that JA can undertake that role, 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.
20. The CCG point out that there can be no blanket prohibition on a family member assuming the Rule 3A role where he or she provides care to a person deprived of his liberty at home and nothing in the COPR or the Practice Direction automatically disqualifies a family member from acting as the Rule 3A representative (or litigation friend) if he or she can fulfil the requirements of Rule 147 and/or Rule 140. Hands-on involvement (in this particular case by JA) does not render her unable to fulfil the role and if anything, potentially enhances the quality of the information provided to the court.
21. Reference is made to observations by Charles J in NRA (paragraph 162):-

"It is also inevitable that such family members or friends will have an interest in the outcome of the proceedings because it affects them as well as P. Their role may have continued over the life of P, or may have started when P became less capable of looking after his or her affairs and continued after P lost relevant capacity. In my view, the fact such persons have performed that role, and in doing so have formed firm views, as to where P's best interests lie, and to voice those views, does not mean that they cannot meet the criteria in Rule 140(1) or that they are disqualified from acting as P's litigation friend".

22. The fact that an issue relating to deprivation of liberty arises does not automatically mean that the independence required of a litigation friend precludes the appointment of a family member, the question of appointment is fact and case sensitive (Charles J in NRA at paragraphs 166 and 173).
23. The SCCG rejects the emphasis that in this particular case the Official Solicitor places on the particularly high degree of restrictions on P's physical liberty, and for which in part JA would be responsible, as ruling her out as being an inappropriate representative or litigation friend. As a matter of evidence there is nothing before the court, nor indeed any suggestion that JA has used restraint or restrictions inappropriately or beyond that which has been specified in P's care plan.
24. In summary therefore, the CCG's case is that there is nothing in the facts of this case that would disqualify JA from acting as Rule 3A representative or litigation friend and the fact that a family member has firm views about P's best interests and plays a part in depriving P of his liberty, does not debar her from acting as litigation friend.

Discussion

25. I have considered the submissions from both parties carefully and have also had an opportunity not only of reviewing the statutory framework but also considering the judgments of Charles J in NRA and VE. I would not wish to depart in any way from the guidance he gives to representatives or the conclusions he reaches as to the suitability of appointment of representative or litigation friend of family members.
26. As Charles J indicated in NRA (paragraph 163) the interest of devoted family members or friends does not give rise to an adverse interest to P and so to a conflict of interest, or otherwise mean that they cannot properly and effectively promote P's best interests. Indeed, in performing their supporting and caring role over the years many such family and friends will have been doing just that by, for example, investigating, negotiating, obtaining and reviewing care and support from public authorities to promote P's best interests at home and in the community. The performance of that role will often mean that they have fought P's corner over a long time to promote his or her best interests and that they are, and will be the best or an appropriate litigation friend because they know P best and will be best placed to ensure the promotion of P's best interests ...
27. However, whilst I accept that each case is fact-specific to which the general principles set out in NRA and Re VE should be applied, 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. Whilst I would not go so far as to say even in this particular case it was "manifestly inappropriate" for JA to act as P's representative, the circumstances of P's deprivation and the existence of an implementation of a care plan which significantly restricts P's liberty by way of restraint, require the court to give close scrutiny as to whether or not, if she is willing, JA would be an appropriate representative or litigation friend or whether such role should be undertaken by an independent person such as the official solicitor.
28. It would be inappropriate for this judgment to go beyond the facts and circumstances of this case. There are in my judgment sufficient guidelines both in the statutory framework and the decisions of Charles J in VE and NRA for the following issues to be recorded:-

(a) Whether or not a family member or friend who is responsible in part for implementing restrictive care arrangements is appropriate to be representative or litigation friend is fact and case specific.

(b) The court will have close regard to the relationship between the family member and P,and

(c) The conduct, if any, of the family member and any available evidence that he or she has acted otherwise than in accordance with Rule 140(1) or Rule 147.

(d) That the court must consider the nature of the restrictive care package and the role that the family member would play in such regime.

29. I entirely agree with the submission of the Official Solicitor that 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 in proceedings pursuant to Rule 3A. However, I would go no further than that. If it be the case that a family member or friend who is so involved puts themselves forward to act as representative or litigation friend, subject to that scrutiny being carried out there can be no blanket objection, in principle, to their ability to undertake the role.
30. Provided the court is satisfied that such 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 or 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 provided the court is satisfied they can and are being adequately protected such role can be undertaken by the friend or family member.

31. Finally, in this case whilst not wholly academic, JA's unwillingness to act as representative or litigation friend means that the Official Solicitor will in any event continue to act as litigation friend, as last resort, for MSA.

Dated this 20 day of September 2017

………P G BELLAMY…………….

DISTRICT JUDGE BELLAMY