SCC v MSA & Anor [2017] EWCOP 18 (20 September 2017)

SCC v MSA & Anor [2017] EWCOP 18 (20 September 2017)

There is no absolute bar to a family member responsible for implementing restrictive care arrangements acting as Rule 3A representative or litigation friend, but the court must closely scrutinise such appointments for potential or perceived conflicts of interest, particularly where significant restrictions on liberty are involved. The appointment must ensure P's Article 5 rights are protected and the representative can elicit P's wishes, critically examine the care package, and keep its implementation under review.

Citation
[2017] EWCOP 18
Parties
Applicant: SCC; First Respondent: MSA; Second Respondent: JA; Third Respondent: SCCG
Jurisdiction
England and Wales
Judgment Date
20 September 2017
Procedural Posture
Court of Protection Mental Capacity Act 2005 / Judgment on Appropriateness of Family Member as Rule 3 a Representative
Outcome
Guidance given; no appointment of JA as Rule 3A representative due to her unwillingness; Official Solicitor to continue as litigation friend for MSA.
Legal Topics
Deprivation of Liberty, Representation of Incapacitated Persons, Rule 3 a Representatives, Conflict of Interest, Best Interests, Article 5 ECHR
Mental Capacity Law Human Rights Law Deprivation of Liberty Representation of Incapacitated Persons Rule 3 a Representatives Conflict of Interest Best Interests Article 5 ECHR

Case Brief

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Parties

SCC

Applicant

MSA

First Respondent

JA

Second Respondent

SCCG

Third Respondent

Procedural Posture

Court of Protection Mental Capacity Act 2005 / Judgment on Appropriateness of Family Member as Rule 3 a Representative

Legal Issues

  1. 1 Whether a family member responsible for implementing restrictive care arrangements can act as Rule 3A representative or litigation friend for P (MSA)
  2. 2 Whether such appointment creates a conflict of interest or undermines P's Article 5 rights

Ratio Decidendi

There is no absolute bar to a family member responsible for implementing restrictive care arrangements acting as Rule 3A representative or litigation friend, but the court must closely scrutinise such appointments for potential or perceived conflicts of interest, particularly where significant restrictions on liberty are involved. The appointment must ensure P's Article 5 rights are protected and the representative can elicit P's wishes, critically examine the care package, and keep its implementation under review.

Court Disposition

Guidance given; no appointment of JA as Rule 3A representative due to her unwillingness; Official Solicitor to continue as litigation friend for MSA.

Orders

  • Official Solicitor to continue as litigation friend for MSA.
  • Guidance provided on appointment of family members as Rule 3A representatives or litigation friends.