Thu, 15 Jun 2017
N v ACCG and others  UKSC 22
On 22 March 2017, the Supreme Court delivered its much awaited decision in N v ACCG. The lead judgment was delivered by Lady Hale, Deputy President to the Supreme Court (with whom Lord Wilson, Lord Reed, Lord Carnwath and Lord Hughes agreed).
The case concerns a young man ("MN") who is profoundly disabled and requires 24-hour care and support. MN resides at a residential placement and his care and support is commissioned by a clinical commissioning group ("CGG") on account of MN having a primary health need. A dispute arose between the CCG and MN's parents in relation to: (i) whether MN should exercise contact with his parents at their home; and (ii) whether MN's mother would be permitted to assist the care home staff with MN's intimate care when she was visiting MN at his placement.
The Supreme Court's judgment affirms the earlier decisions of:
(1) Mrs Justice King on 20 November 2013 in N (An Adult) (Court of Protection: Jurisdiction)  EWHC 3859 (COP);  C.O.P.L.R. 1; and
(2) the Court of Appeal (Civil Division) on 07 May 2015 in N (An Adult) (Court of Protection: Jurisdiction)  EWCA Civ 411;  3 W.L.R. 1585;  C.O.P.L.R. 505.
In summary, both Mrs Justice King and the Court of Appeal (comprising of the President of the Court of Protection, Lord Justice Treacy and Lord Justice Gloster) held that when making decisions on behalf of incapacitated adults, the court was limited to the options available to that individual and could not compel a public authority to agree to a care plan which it was unwilling to implement.
In the opening paragraph, the Supreme Court confirms that "it is axiomatic that the decision-maker can only make a decision which P himself could have made. The decision-maker is in no better position than P". However, the Supreme Court has effectively reframed the question for the courts from one of jurisdiction to case management and "how the case should be handled in the light of the limited powers of the court" (paragraph 38).
Key Question for the Court
The substantive issues between the CCG and MN's parents were summarised as follows:
(1) the parents wished for MN to come and visit them in their home. MN's care home was unwilling to facilitate MN’s visits to the family home and therefore alternative trained carers were required. The CCG was not prepared to fund alternative carers. The Official Solicitor for MN, supported the CCG’s position.
(2) MN’s mother wished to be allowed to assist the care home staff with MN's intimate care when she was visiting him at his placement. Once again, the care home was not willing to allow this and the CCG’s position (supported by the Official Solicitor) was that it was not in MN’s best interests for his mother to be involved in his personal care.
In the opening paragraph of her judgment, Lady Hale framed the general issue before the court in the following terms "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?"
The Court's Decision
The Supreme Court dismissed the appeal and concluded as follows:
a. the jurisdiction is not to be equated with the wardship jurisdiction of the High Court. The Court of Protection does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court (paragraph 24);
b. the Court of Protection has no greater power to oblige others to do what is best than the incapacitated adult would have himself. The court can only choose between the “available options” (paragraph 35);
c. the issue before Mrs Justice King did not revolve around jurisdiction in the usual sense of whether the court has jurisdiction to hear the case. The court clearly has jurisdiction to make any of the orders or declarations provided for in the Mental Capacity Act 2005 (paragraph 38);
d. "This was not a case in which the court did not have jurisdiction to continue with the planned hearing. It was a case in which the court did not have power to order the CCG to fund what the parents wanted. Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do. In those circumstances, the court was entitled to conclude that, in the exercise of its case management powers, no useful purpose would be served by continuing the hearing" (paragraph 44);
e. in such circumstances, the court was entitled to exercise its case management powers and conclude that no useful purpose would be served by continuing the hearing. This is the substance what Mrs Justice King was doing and she was entitled in the circumstances to do it.
Points for Practice
Many practitioners considered the Court of Appeal's decision in MN as effectively enabling public bodies to exercise a significant degree of control over proceedings by refusing to offer a particular option, thereby precluding the court of protection from having jurisdiction to consider such option and requiring the incapacitated adult to challenge such refusal by way of judicial review proceedings.
The Supreme Court's decision makes plain that "a care provider or funder can[not] 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" (paragraph 43).
Accordingly, when a public body declines, for example, to offer a particular place of residence, or provide further resources for increased community access or contact, the question before the court of protection is not whether the court has jurisdiction to consider the issue of residence, care or contact (the court will always have jurisdiction to make decisions about a person's residence, care regime and contact with others), but whether any useful purpose will be served by holding a hearing to resolve the particular issue in the specific proceedings, taking into account the need to deal with the case justly in accordance with the overriding objective.
In reaching a decision as to whether any useful purpose will be served by holding a hearing to resolve a particular issue, many factors might be relevant, including:
a. the nature of the issues
b. their importance for the incapacitated adult
c. the cogency of the demands made by the parties
d. the reasons why the public body is opposed to such demands and the cogency of such opposition
e. any relevant and indisputable fact in the history of the case
f. the views of the incapacitated adult's litigation friend
g. the consequence of further investigation in terms of costs and court time
h. the likelihood that it might bring about further modifications to a care plan or consensus between the parties
i. generally, whether further investigation would serve any useful purpose.
In terms of the case management powers of the Court of Protection, Lady Hale provides a very detailed overview at paragraph 40:
a. the Court of Protection has extensive case management powers;
b. although the Court of Protection Rules 2007 do not include an express power to strike out a statement of case or to give summary judgment, such powers are provided for in the Civil Procedure Rules, which apply in any case not provided for so far as necessary to further the overriding objective;
c. the overriding objective is to deal with a case justly having regard to the principles contained in the 2005 Act (Court of Protection Rules 2007, rule 3(1)). Dealing with a case justly includes dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues and allocating to it an appropriate share of the court’s resources (rule 3(3)(c) and (f));
d. the Court will further the overriding objective by actively managing cases (rule 5(1)). This includes encouraging the parties to co-operate with one another in the conduct of the proceedings, identifying the issues at an early stage, deciding promptly which issues need a full investigation and hearing and which do not, and encouraging the parties to use an alternative dispute resolution procedure if appropriate (rule 5(2)(a), (b)(i), (c)(i), and (e));
e. the court’s general powers of case management include a power to exclude any issue from consideration and to take any step or give any direction for the purpose of managing the case and furthering the overriding objective (rule 25(j) and (m));
f. the court may determine a case summarily of its own motion, but their power “must be exercised appropriately and with a modicum of restraint” (as per KD and LD v Havering London Borough Council  1 FLR 1393).
Importantly, Lady Hale also affirmed the President's conclusions in N (An Adult) (Court of Protection: Jurisdiction)  EWCA Civ 411 that declarations under section 15 of the Mental Capacity Act 2005 have no coercive effect and unless the desired order clearly falls within the ambit of section 15, orders are better framed in terms of relief under section 16 (paragraph 26).
16th June 2017