Judge: District Judge Bellamy
Citation:  EWCOP 18
District Judge Bellamy has added to the small but important body of case-law concerning Rule 3A in the context of so-called Re X applications for judicial authorisation of deprivation of liberty. He has given guidance as to whether it is ever appropriate for a family member (or other person) responsible for implementing restrictive care arrangements that constitute a deprivation of liberty also to be appointed and to act as P’s Rule 3A representative.
MSA was a young man whose care at his family home was delivered in accordance with a package of care commissioned by SCCG. MSA was recorded as being “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.” His mother was one of the key people assisting SCCG in the implementation of the care package resulting in P’s deprivation of liberty. SCCG made an application for judicial authorisation of P’s deprivation of liberty, with his mother identified as being a suitable candidate to be his rule 3A representative.
It is not immediately obvious from the judgment how the Official Solicitor became involved in the proceedings, although it was clear that MSA’s mother, JA, indicated at some stage that she did not wish to act as Rule 3A representative (or as litigation friend). The Official Solicitor expressed concern that SCCG did not accept 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.” SCCG took the position that JA could undertake the role of Rule 3A representative as it had been outlined by Charles J in Re VE as “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.”
Both parties filed written submissions 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. As District Judge Bellamy noted, because JA did not want to be so appointed, “the question posed by the Official Solicitor could be said to be academic,” nonetheless acceded to the request to give some guidance on this issue, as follows:
(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.
(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.
There are three comments to make about this judgment. The first concerns the substance of the guidance given by District Judge Bellamy. The judgment faithfully follows the approach adopted by Charles J (and also, in an entirely different context, that of Peter Jackson J in M v A Hospital, covered elsewhere in this Report, in which he held that there is no reason in principle why a family member cannot act as litigation friend in an application for withdrawal of clinically assisted nutrition and hydration, even if they support the application). It shows how far the pendulum has swung from an essentially instinctive suspicion of the ability of those with a personal connection to P to act as their litigation friend in CoP proceedings towards a view that they may, in fact, be exactly the right person to act because of that personal connection. There is a great deal to be said for this, although the more the pendulum does swing, the more that we may legitimately start to ask whether we may need, at least in certain classes of case, both a litigation friend (to advocate for P) and an amicus or other person to assist in the inquisitorial stress-testing of the arguments advanced by the parties. For more on this, see both the article Alex and Neil co-wrote with Peter Bartlett.
The second comment is of the ‘dog that did not bark in the night’ nature. There appears to have been no dispute that MSA was deprived of his liberty for purposes of Article 5(1) ECHR, notwithstanding the fact that (1) he was in his own home; (2) his mother was either his primary carer; and (3) on the face of the judgment, there were no external carers (i.e., it would appear, no carers employed directly by SCCG). We had thought that this scenario might be tested before the courts in test cases to be heard before Baker J in early September, but such was not to be, and this case serves as another reminder of the tentacles of Article 5 ECHR.
The third comment concerns the status and nature of the guidance given, which gives rise to two further points:
 Note, Tor having been involved in the case, this note is prepared without her input.