SCC v MSA & Anor [2017] EWCOP 18

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