Friends and family members may represent vulnerable people in Court of Protection proceedings, a Judge has ruled.
The case concerned a “young” man, referred to as MSA, who has serious learning disabilities and is confined at home where he is cared for by his mother. These restrictions on his freedom of movement were formally authorised in a care order issued by the Court of Protection earlier this year, on the basis that they are in his best interests.
His mother is assisted by the family’s NHS Trust, who provide the family various care services. During the proceedings which led to District Judge Bellamy issuing the care order, a question arose as to the legal role to be played by MSA’s mother.
Rule 3A of the Court of Protection Rules 2007 require courts to ensure that people unable to litigate for themselves due to illness or disability are properly represented in Court of Protection hearings. The rule states that this should be:
“.. secured by the appointment of a representative whose function shall be to provide the court with information … and to discharge such other functions as the court may direct”.
Such ‘Rule 3A representatives’ must in a position to “fairly and competently discharge his or her functions” according to Rule 147.
The Official Solicitor, acting on behalf of MSA, suggested that it would be wrong for his mother to take on this rule during the proceedings because she was the person responsible for restricting his ‘liberty’ (i.e. freedom of movement).
In spite of the fact that MSA’s mother had not expressed any wish to become her son’s Rule 3A Representative, the Court agreed to consider the issue because she was the most obvious candidate and it was therefore considered an important legal point.
Judge Bellamy explained:
“…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 [the person]’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 [the person]’s best interests at home and in the community. The performance of that role will often mean that they have fought [the person]’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 [the person] best and will be best placed to ensure the promotion of [the person]’s best interests.”
But, he continued:
“…whilst I accept that each case is fact-specific…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.”
But, subject to such scrutiny, he concluded, there could be no blanket objection to friends or family members acting as legal representatives of a person without capacity in similar proceedings.
In this case, however, given the mother’s unwillingness to take on the role, “the Official Solicitor will in any event continue to act as litigation friend, as last resort, for MSA.”
Read SCC v MSA & Another here.