Court of Protection Solicitors

The Supreme Court handed down judgment in N v ACCG on 22 March 2017, unanimously rejecting an appeal brought by MN’s parents. The principal issues that the Court had to consider can be illustrated by asking this question: what should the Court of Protection do if a party to the case wishes to pursue a best interest option that a public body will not fund?

A reasonable account of the answer the Supreme Court gave is: the Court should assess the issues in the case and use its case management powers to consider or reject issues and options as the Court considers appropriate. This answer is different to the one provided by the High Court and the Court of Appeal, which directed that absent exceptional convention rights considerations, the Court should not consider options that a public body will not fund.

Background

MN is a profoundly disabled man in his early twenties. He is a wheelchair user who needs a nurse to be on-hand at all times to administer emergency drugs and receives a comprehensive package of care and accommodation from the CCG.

The two critical best interest matters that formed the focus of the case were, first, NM’s parents’ wish to provide personal care to NM alongside his team of professional carers, and second, NM’s parents’ wish for NM to visit them in their home. As to the first issue, the care home staff refused to agree to the parents’ request because they were concerned that they would not co-operate with the care staff and they had refused training. As to the second issue, it was common ground that this could only be achieved by the provision of additional staff and the CCG refused to grant this funding.

The Local Authority notified the parties shortly before what was intended to be the final best interest hearing that it would contend that the Court had no jurisdiction to consider these two best interest issues because, since the Court of Protection could not mandate a public authority to fund any particular care package, it could not consider hypothetical options. Any challenge to a commissioning decision would have to be made by judicial review in the Administrative Court. Eleanor King J accepted this argument but held that in rare cases where it was properly arguable that failure to fund a package of care would breach a convention right, any such claim could be considered in the Court of Protection proceedings provided the issues were properly pleaded.

The Court of Appeal upheld Eleanor King J’s decision. Sir James Munby P conducted a thorough review of the authorities and advanced four reasons: first, the Court should not consider abstract issues which could not affect the outcome of the proceedings; second, the Court of Protection should not be used as a platform for judicial review; third, there is a clear division between the functions of the Court of Protection making best interest decisions and public bodies – the former is concerned with the interests of the person in the proceedings whilst the latter has to balance scarce resources; and fourth, presumably flowing from the third point, the Court of Protection should not be used to place impermissible pressure on public bodies. Sir James Munby P did, however, conclude that it would be appropriate on a case-by-case basis for a judge to consider adjourning the case to ask the public body to reconsider.

The Supreme Court’s decision

The Court dismissed the appeal and upheld the Order of Eleanor King J. The Court did, however, reject the idea that the question was jurisdiction because the Court has jurisdiction to make any orders or declarations provided for under the MCA. The question is one of case management.

The question is not strictly one of jurisdiction but of how the case should be handled in the light of the limited powers of the court and

41. The court is clearly entitled to take the view that no useful purpose will be served by holding a hearing to resolve a particular issue. In reaching such a decision, many factors might be relevant. In a case such as this, for example: the nature of the issues, their importance for MN; the cogency of the parents’ demands; the reasons why the CCG opposed those demands and their cogency; any relevant and indisputable fact in the history; the views of MN’s litigation friend; the consequence of further investigation in terms of costs and court time; the likelihood that it might bring about further modifications to the care plan or consensus between the parties; and generally whether further investigation would serve any useful purpose

42. In this case, considerations along those lines would no doubt have produced the following conclusions. The issues had been narrowed. They were important for MN but not as important as the basic question of where he should live. There were good reasons, not least in the history, for thinking that the parents’ wishes were impracticable and that the CCG had good reason for rejecting them.

Baroness Hale did not comment upon Sir James Munby’s reasoning directly but it is apparent that there are differences between the approach in the Supreme Court and the Courts below. The Court of Appeal’s approach to the issue is that once a decision is characterised as a public commissioning decision, absent cogent and properly pleaded human rights arguments, the Court of Protection may go no further than asking the public body to reconsider its position. This contrasts with the approach of the Supreme Court, which requires the judge to make a case management assessment of the importance of the issues to the parties to the proceedings that includes a consideration of the cogency of the reasons provided by the public body for refusing to commission a particular option, before deciding whether to explore it in proceedings. Thus, the Supreme Court decision gives discretion to the judge to consider options that a public body says it will not fund if the judge thinks that it is sufficiently important to the case. It seems likely that the approach taken by the Supreme Court will result in Court considering options that public bodies are reluctant to commission.

A less clear cut issue is the extent to which – if at all – the Supreme Court’s approach rejects Sir James Munby P’s rigid characterisation of issues as either public law commissioning decisions for the Administrative Court or best interest decisions for the Court of Protection. This categorises the decisions as binary and mutually exclusive: they are either best interests decisions for the Court of Protection or public law decisions, justiciable only in the Administrative Court. Sir James Munby must surely be correct that a decision is either a best interests decision that the Court can choose for the incapacitated person from an option on the table, or it is not. But this rigid, and binary, characterisation of issues before the court is not without its difficulties, which may be highlighted with the following example. Suppose a local authority is prepared to commission a package of care for an incapacitated relative at home and the budget is allocated. Shortly before the care is due to start, the local authority changes its position and refuses to commission the care, not because it thinks that the care is too expensive, but because it is concerned that the incapacitated adult will be abused by another family member in the home. Characterising this decision as a commissioning decision or a best interest decision may not be so easy. On the one hand, the local authority may say that it is unprepared to commission this care because to do so would no longer be in accordance with its policies; but equally, it may be the case that what the Local Authority is really saying is that it will no longer commission the care because it no longer considers care at home to be in the person’s best interests. It is also conceivable that such a decision is both a best interests and commissioning decision or at least a decision that has a number of elements, some of which public law, some of which are founded on the public body’s views of the person’s best interests. Sometimes the position will not be clear.

The approach taken by the Supreme Court appears commensurate with overcoming the difficulties of characterisation and it cannot, in particular, be right that public authorities are able to avoid a proper consideration of an option simply by contending that the decision is a public law commissioning decision. Although noting in Sir James Munby P’s reasoning comes close to suggesting that public authorities rather than the Courts can characterise their decisions, it might prove tempting for a public authority to avoid scrutiny by labelling the decision as a cost commissioning decision, when it is in fact something else. The approach of the Supreme Court ensures that the judge has the discretion to consider all of the important issues that arise in the case.

The Court of Appeal’s concerns about litigation arising in the Administrative Court are easy to understand. But an alternative view would be that if there is a determination that an unfunded option is not in a person’s best interests then it is difficult to see how that would not in all cases dispose entirely of any question of a judicial review.

Alex Peebles, the author, is a Solicitor in Duncan Lewis’ Public Law Department. He has a broad range of experience in handling complex cases in the High Court, the Court of Appeal and the European Court of Human Rights in issues including Commercial, Social Care and Environment Judicial Review, Discriminatory matter relating to the Quality Act, Data Protection and Information law, Disputes in the Court of Protection and Human Rights Claims and Inquests.

Duncan Lewis Court of Protection Department

Duncan Lewis' Court of Protection Department assists individuals in both publicly and privately funded cases from offices across London and throughout the UK. The department is recommended by the independent legal directory, Legal 500, as a leading practice in cases that overlap mental health and capacity, and deprivation of liberty safeguards. The firm is also applauded for its specialism in judicial review claimant matters and higher courts work.

For more information about our Court of Protection services, please contact Duncan Lewis Solicitors on 0333 772 0409.