District Judge Bellamy has very recently (20 September) 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. In SCC v MSA & Ors  EWCOP 18, he gave guidance (the precise status of which I will address below) 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 authoriation 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), either at that stage or any future point. 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 JSA 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:
“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.”
There are four 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 a different context, that of Peter Jackson J in M v A Hospital, 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’s perspective) 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 I co-wrote with Neil Allen and Peter Bartlett and come to the forthcoming National IMCA Conferences in Sheffield on 20 October and 10 November in London…
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 his primary carer; and (2) on the face of the judgment, there were no external carers (i.e., it would appear, no carers employed directly by SCCG). This is yet one stage further than MIG’s case (where MIG was cared for in the home of a foster mother). 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 long tentacles of Article 5 ECHR.
The third comment relates to the fact that it seems now as a matter of routine accepted that it is entirely possible for District Judges sitting in the Court of Protection to address and give guidance upon ‘systemic’ matters (for another recent example, see The Public Guardian’s Severance Applications). Many of their judgments on individual cases have also had very considerable impact in shaping approaches more widely (think, for instance, of the judgment of DJ Eldergill in Manuela Sykes’ case). On one view, this could be said to reflect a rather cavalier departure in the CoP from the approach that applies in the civil courts to the status of judgments delivered by District Judges. Alternatively, it could be said to represent a realistic recognition that: (1) we are all still finding our way even almost exactly 10 years to the day since the Act came into force; (2) that the District Judges are entrusted to determine the vast bulk of the issues that come before the courts; and (3) that, in consequence, we can, and should, have regard to reasoned judgments reflecting their practical expertise in applying the MCA and the Court of Protection Rules.
The final point arises out of the coincidence of the fact that this decision was handed down on precisely the same day as M v A Hospital. In that case, the Official Solicitor made the strong submission that Peter Jackson J should not address the question of whether applications to the Court of Protection should be made in treatment withdrawal cases because his conclusions would be obiter, the application in M’s case having been made. In the present case, by contrast, the Official Solicitor expressly invited the court to give ‘guidance’ as to the approach to be adopted to Rule 3A representatives, notwithstanding that this issue could be said to be academic given that JA had made clear she did not wish to act as her son’s representative. Put side by side, the two cases show the difficulties in enlisting the assistance of the court in relation to ‘systemic’ issues which go wider than the facts of individual cases. It is frequently clearly proportionate and sensible to ensure that either a change in the facts or the concentration by the court on the immediately necessary issues first does not prevent the court (in an appropriate case) indicating how matters should be handled in the future. But how then to avoid the ‘obiter trap’? Perhaps the most sensible way to do so is to identify that there is not a simple distinction between ‘ratio’ and ‘obiter,’ but to recognise as did Megarry J (as he then was) in Brunner v Greenslade  Ch 993 and 1002 that: “[a] mere passing remark, or a statement or assumption on some matter that has not been argued, is one thing; a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter…” I would respectfully suggest that – viewed through that prism – the observations of DJ Bellamy escape the obiter trap.