Judgment considering whether the mother and carer of a patient deprived of his liberty while receiving care at home should be able to act as his Rule 3A representative.

P has profound learning difficulties and 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."

In these circumstances the Official Solicitor submitted that the mother, JA, should be considered "manifestly unsuitable" as the Rule 3A representative as such a person should not be a person who has a significant degree of involvement in the acts that constitute the deprivation of liberty

SCCG, the commissioning provider, argued instead that JA had shown herself to be capable of carrying out the role, and following Re VE [2016] EWCOP 16, 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.

District Judge Bellamy, while agreeing with the OS that the court should take great care in exercising its discretion in such situations, did not go further, concluding:

"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."
 
He also sets out some guidelines for the issues that the court should consider in determining the issue 

Read the judgment on Bailii

​This judgment considered whether legal proceedings were necessary when there was agreement between the Patient's family and her clinicians that CANH was no longer in her best interests. The judge concluded that they were not.

​Application made by the Patient's mother for a declaration and order that it is in the Patient's best interests to receive stem cell treatment for his brain injury at a clinic in Belgrade in Serbia. Provisional consent was given although several further steps needed to be taken before the court gave its final approval.

The Patient was a Lance Corporal who was knocked unconscious in June 2013, while serving abroad, after being assaulted in a bar by another member of the regiment. He lacks capacity as a result of a traumatic brain injury. His mother was applying for a declaration and order that it is in his best interests to receive stem cell treatment for his brain injury at a clinic in Belgrade in Serbia. The application was opposed by the Official Solicitor, who has been appointed to act as the Patient's litigation friend in the proceedings, and by the MOD who are responsible for his care and treatment. 

The court approved the application with the proviso that further steps needed to be taken first, saying that it was almost certain that the Patient will be much more than miserable if he is denied the opportunity to have stem cell treatment. His reaction would not be confined to mere "disappointment" - it was highly likely that he would demonstrate an adverse reaction in his behaviour which may significantly impede and delay his rehabilitation.  

Read the full text of the judgment on Bailii