Sarah Salmon considers the Supreme Court judgment in N v A Clinical Commissioning Group and others  UKSC 22;  2 WLR 1011, a case described from the outset to be about the “jurisdiction” of the Court of Protection. It was, in fact, as Lady Hale noted, unfortunate that the case had been put this way: it was about the role of the Court of Protection and the approach that should be taken in light of its limited powers.
As readers of this blog will be aware, the Court of Protection was born by section 45 of the Mental Capacity Act 2005 (“MCA”) as a specialist court concerning itself with decision making on behalf of people who do not have the capacity to make certain decisions for themselves. It has a range of powers including the ability to make declarations about a person’s capacity to make decision and considering when someone should be deprived of their liberty under the MCA.
Section 15 MCA provides that the court may make declarations as to whether a person has or lacks capacity to make a decision specified in the declaration; whether a person has or lacks capacity to make decisions on such matters as are described in the declaration; and, the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
If a person (“P”) lacks capacity in relation to a matter or matters concerning his personal welfare, or his property and affairs, the court may, inter alia, make the decision or decisions on P’s behalf by making an order on terms considered to be in P’s best interests under section 4 of the MCA (section 16, MCA).
Section 17(1), MCA provides:
“The powers under section 16 as respects P’s personal welfare extend in particular to –
(a) deciding where P is to live;
(b) deciding what contact, if any, P is to have with any specified persons;
(c) making an order prohibiting a named person from having contact with P;
(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;
(e) giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.”
In the context of a Part 7 Housing Act 1996 homelessness case that concerned issues of residence of children subject to a shared residence order made in the family court, Lady Hale stated at :
“When any family court decides with whom the children of separated parents are to live, the welfare of those children must be its paramount consideration…This means that it must choose from the available options the future which will be best for the children, not the future which will be best for the adults. It also means that the court may be creative in devising options which the parents have not put forward. It does not mean that the court can create options where none exist…” (emphasis added): Holmes-Moorhouse v Richmond upon Thames LBC  UKHL 7;  1 W.L.R. 413.
The question that arose in N v A Clinical Commissioning Group (“CCG”) was:
“…what is the decision-maker to do if he has reached the conclusion that a particular course of action is in the best interests of P but the body who will be required to provide or fund that course of action refuses to do so? Specifically, what is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make the decision for himself and members of his family about what should be provided for him?” (see judgment per Lady Hale at ).
N (An Adult) v A Clinical Commissioning Group and others  UKSC 22;  2 WLR 1011
MN has profound learning and physical disabilities needing constant attendance by carers. Since the age of eight and until his 18th birthday, he had been in the care of the local authority pursuant to a care order. The local authority – following some difficulties with MN’s parents and pre-empting that what was in MN’s best interests would not necessarily be agreed when the care order came to end – made an application to the Court of Protection seeking orders as to MN’s care and welfare going forward.
On his 18th birthday, the care order came to an end and, ultimately, the local CCG was responsible for commissioning his care. Being assessed as having a “primary health need”, two days after his 18th birthday he was moved into a residential care home. By the time of the hearing before the Court of Protection, there were two issues between the parents and CCG. The issues were as follows.
- MN’s parents wished for him to visit them at home which had been assessed had being able to accommodate MN for a short visit. The problem was, however, that trained carers would need to attend with him and not only had the parents had been reluctant to have professionals in their home but the care home was unwilling to facilitate such visits with only the manger and her deputy being willing to attend with MN. In order to allow such visits, alternative carers would need to be trained and paid.
- MN’s mother wanted to be allowed to assist with the intimate care of her son when she was visiting the care home. Although an independent social worker thought this interaction could form an important element as to MN’s quality of life, the care home declined to facilitate it (there were fears regarding the mother’s cooperation but also the parents had refused an offer to complete the necessary training).
In any event, late on the day before the hearing, the local authority informed the parties that it would be contending that the Court of Protection had “no jurisdiction” to decide the above issues and instead the matter should have been challenged by way of judicial review. The argument was that the Court of Protection could only decide between the “available options” as these were the only options that MN would have been able to decide between if he had capacity. The home visits and MN’s mother’s assistance with his intimate care were not available as the CCG was unwilling to allow or arrange them or to commission staff or to fund the necessary resources.
Eleanor King J agreed with the local authority and held that the Court of Protection had no greater powers than MN would if he were of full capacity. She explained that if MN had capacity, no matter what he wanted to happen, he would not be able to force the care providers to agree to his mother attending at the care home and assisting with his intimate care (see  COPLR 11 at ).
Both parents unsuccessfully appealed to the Court of Appeal with Sir James Munby P (with whom Treacy and Gloster LJJ agreed) endorsing the approach at first instance. MN’s father, with the mother’s support, appealed to the Supreme Court.
Lady Hale handed down judgment on behalf of the Court and dismissed the appeal. Lady Hale, considering the legislative history and starting from first principles, came to the following conclusions upon how the Court of Protection should deal with what is the best interest of the P vs the fact that the power available to the court is limited to taking a decision that P himself could have taken (see the judgment generally at -).
- Lady Hale stated that it was worth noting what section 17 MCA did not say, e.g., it did not say that the powers extended to a decision that a named person must take over responsible for P’s health care or deciding that a named care home must accommodate (see judgment at ).
- Placing reliance on Holmes-Moorhouse and the similarities between the family court with the Court of Protection, the court
“has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the “available options” …the court cannot oblige an unwilling parent to have the child to live with him or even to have contact with him, any more than it can oblige an unwilling health service to provide a particular treatment for the child” (judgment at .
- Using the Care Act 2014 (not relevant in this particular case) and the National Health Service as examples, Lady Hale made the point that
“…service-providing powers and duties also have their own principles and criteria, which do not depend upon what is best for the service user, although that will no doubt be a relevant consideration…Decisions on health or social care services may also engage the right to respect for private (or family) life under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 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…Here again, therefore, the legal considerations, both for the public authority and for the court, are different from those under the 2005 Act” (judgment at ).
- The court’s case management powers, under the Court of Protection Rules 2007, allowed it to refuse a hearing on a dispute on the basis it would serve no useful purpose. Bearing that in mind, Lady Hale suggested that many factors would be relevant (judgment at ) including:
- the nature of the issues and their importance for P;
- the cogency of demands by, for example, the parents made of the relevant public body;
- the reasons why the public body opposes those such demands and their cogency;
- any relevant and indisputable fact in the history;
- the views of P’s litigation friend;
- the consequence of further investigation in terms of costs and court time;
- the likelihood that further investigations might lead to alterations in the care plan or agreement between the parties; and,
- whether further investigation would serve any useful purpose.
- Lady Hale emphasised that case management along the above lines did not mean that a those providing or funding care could thwart proceedings in the Court of Protection by refusing to consider changes to a care plan (judgment at .
In MN’s, case managing the matter by consideration of the relevant factors meant that it would have been disproportionate for further court resources to be used to attempt to resolve the outstanding issues between the parents and the CCG. The Court of Protection had jurisdiction but did not have the power to order that the CCG fund the parents’ demands nor the power to order the care providers to do things they were unwilling or unable to do. The court was, therefore, entitled to decide that hearing the matter would serve no useful purpose (judgment at  and ).
As is the theme running through all types of civils courts and tribunals, there is an emphasis on the proportionate use of the court’s time and resources when it comes to case management. With that emphasis in mind, the Supreme Court has made it clear what the limits are in the Court of Protection in relation to best interest assessments. It also made it clear that a decision as to what is in P’s best interest is limited to the available options.
It cannot be enough for a public body to hide behind the fact that it has limited resources, with budgets stretched, as a reason for not having options in relation to care plans available. This is why the Supreme Court highlighted the need to keep disputes under review in the hope that resolution could be achieved before the need for intervention by the court. The use of alternative dispute resolution was encouraged (again a recurring theme throughout the civil justice system).
The case, however, is likely to mean that so long as a public body providing and/or funding care has cogent and clear evidence as to the reasons why it is opposing any demands made upon it lengthy final hearings could be avoided. This leaves individuals in somewhat of a quandary as to the options available to such challenge decisions taken in a person’s best interest when only “available options” are put forward by a provider or funder of care.