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Articles | Wed 17th May, 2017
In N v A Clinical Commissioning Group & Others  UKSC 22;  2 WLR 1011 (“In re N (An Adult)”), the Supreme Court considered the limits of the Court of Protection’s substantive and procedural powers, holding that the Court of Protection (“CoP”) has no greater power to oblige others to do what is in a person’s best interests than the person would have had himself were he of full capacity: the CoP is limited to choosing between the options that would be available to the person in question and need not hold a best interests hearing to consider options it lacks the power to order.
The judgment given by Baroness Hale on 22nd March 2017 is well worth reading in full: Court of Protection specialists will appreciate its subtle analysis of the difference between welfare determinations and public law; for those less familiar with the Court of Protection, the judgment sets out an almost textbook-like account of its origins, jurisdiction and powers.
MN is a man with severe learning and physical disabilities, requiring constant care. He had been in the care of a local authority from the age of eight, an application by his parents to discharge the care order being refused in part because of his father’s lack of co-operation with care staff. As an adult, care of MN had passed to the local clinical commissioning group (“CCG”), which had placed him in specialist residential care.
The first instance proceedings had been brought by the LA and then taken over by the CCG. The CCG sought declarations under section 16 of the Mental Capacity Act 2005 (“MCA 2005”) as to MN’s placement, care and contact with family members. There was no dispute that MN lacked capacity to make decisions about his residence or contact. There was also agreement that the proposed residential accommodation would be suitable. However, there was a dispute between MN’s parents and the CCG over the CCG’s refusal to fund or provide the parents’ preferred care package, involving visits to the family home which would require buying-in and training additional specialist carers.
At the start of a contested best interests determination, the CCG had argued that the CoP lacked jurisdiction as the care package sought by the parents could not be imposed upon the CCG. The CCG argued that its decision had been a public law decision challengeable only by way of judicial review or under the Human Rights Act 1998. Eleanor King J, sitting in the CoP, declined to embark upon a full best interests hearing. She held that the CCG’s proposals were in MN’s best interests and compatible with his Article 6 and 8 rights. The CoP, the Judge held, had no greater powers than MN would have had were he of full capacity. It was not for the CoP to consider the reasonableness of decisions made by care providers and other public authorities. She made orders implementing the CCG’s proposed care package.
The parents appealed to the Court of Appeal which dismissed the appeal; the Supreme Court gave MN’s father permission to appeal on issues including whether the CoP had jurisdiction to determine MN’s best interests where a commissioning body had decided that it was unable or unwilling to provide the service sought by or on behalf of MN. The Supreme Court dismissed the appeal and affirmed the decision of the Court of Appeal.
The Supreme Court cites with approval the following passage from Eleanor King J’s reserved first-instance judgment:
If MN had capacity, but required the type of nursing care he currently needs due only to his physical needs, he might wish his mother to assist with his personal care. The care providers…may, as here, be unwilling to allow this for whatever reason; perhaps health and safety issues or difficult relationships with MN’s mother. MN with capacity would have the following options: (i) accept the conditions of residence at the care provider’s establishment, (ii) privately fund his care elsewhere, or (iii) seek to negotiate with the CCG in the hope of them agreeing to fund his removal to a different residential care unit which would allow his mother to assist with his person care. What MN with capacity would not be able to do is to force, by way of court order or otherwise, the care providers…to agree to his mother coming into their facility and ‘assisting’ with his intimate care.
Where a dispute such as this occurs in respect of a person lacking capacity, therefore, the CoP cannot force the care provider to do something, any more than that person with capacity could have. The CoP can only choose between the available options. It must do so on the basis of which option is in the person’s best interests: but it cannot decide that a person’s best interests would be best served by an alternative option, not proposed by the care provider and then force the care provider to act accordingly. The CoP cannot make decision that a person with capacity could not have.
Judicial review remains the only proper vehicle through which to challenge unreasonable or irrational decisions made by care providers and other public authorities. The CoP should not be used to try to influence public law decisions or to adjudicate disputes between the providers or funders of health or social care services for a person lacking capacity and members of his family as to what the provider is willing to provide or to fund.
The reasons for this had been set out in the Court of Appeal by Sir James Munby and were approved by Baroness Hale: (1) it is not a proper function of the CoP to embark upon a factual inquiry into an abstract issue, the answer to which cannot affect the outcome of the proceedings before it; (2) the CoP should not embark upon such an inquiry in order to provide a platform or springboard for possible future proceedings in the administrative court; (3) such an exercise runs the risk of confusing the different perspectives and principles governing the exercise by the CoP of its functions and the exercise by the public authority of its functions; and (4) it would risk exposing the public authority to impermissible pressure.
The Supreme Court notes that the CoP is operating on a different plane and on different principles from a public authority which is deciding how to exercise its statutory powers and duties to provide services. The Care Act 2014, for example, creates a scheme of individual entitlement to care and support for people in need of social care. It has its own scheme for assessing needs, determining eligibility and deciding how eligible needs should be met. Decisions under the 2014 Act can be challenged on the usual judicial review principles. Human Rights considerations may be engaged, but decisions about the allocation of limited resources may well be justified as necessary in the interests of the economic well-being of the country. The legal considerations are quite different from those under the MCA 2005. At a time of ever-increasing pressure on local authority adult social care budgets, this distinction is only likely to become more relevant.
Applying these considerations to MN’s case, the Supreme Court held that the question was not strictly one of jurisdiction but as to how the CoP should handle the case given its limited powers. The CoP is not obliged to hold a hearing to resolve every dispute where it will serve no useful purpose to do so. Whilst the Court of Protection Rules do not include an express power to strike out a statement of case or give summary judgment, those powers are provided for in the over-arching Civil Procedure Rules. The CoP’s overriding objective of dealing with a case justly having regard to the principles contained in the 2005 Act and its various active case management power entitle it to take the view that that no useful purpose will be served by holding a hearing to resolve a particular issue.
This line of reasoning should not be taken too far: Baroness Hale concludes thus:
Case management along these lines does not mean that a care provider or funder can pre-empt the court’s proceedings by refusing to contemplate changes to the care plan. The court can always ask itself what useful purpose continuing the proceedings, or taking a particular step in them, will serve, but that is for the court, not the parties, to decide.
In MN’s case, the CoP had had jurisdiction to continue with the planned best interests hearing; but it did not have the power to order the CCG to fund what the parents wanted or to order the actual care providers to do that which they were unwilling or unable to do. The CoP had therefore been entitled to conclude, in the exercise of its case management powers that no useful purpose would be served by continuing the hearing.
The Supreme Court notes the distinction between the CoP’s power under s.15 of the MCA 2005 to make declarations as to the lawfulness of a proposed decision and under s.16 to actually make that decision itself in the person’s best interests. Baroness Hale endorses the view expressed by Sir James Munby in the Court of Appeal that, contrary to established practice, the latter approach is to be preferred in most cases.
The full judgment is available here.