Tue, 01 Sep 2015
Sir James Munby, President of the Court of Protection, provided clear guidance as to the nature of the Court of Protection’s jurisdiction, and the approach that should be adopted when a care provider is unwilling to provide, or to fund, the care sought.
In brief: The CoP is confined to choosing between the available options before it, to include those likely to be available in the foreseeable future. It is not the function of the CoP to assess, by way of a ‘best interests’ analysis, hypothetical options sought by a party, unless necessary to determine a credible human rights claim.
MN, a young man, suffers from profound disabilities and lacks capacity to make relevant decisions for himself. The clinical commissioning group, ACCG, took over responsibility for the funding of MN’s placement at an adult residential placement when he turned 18. MN’s parents, Mr and Mrs N, accepted, albeit reluctantly, that MN should live at the adult residential placement, but their aspiration remained that he should return to live with them at home. MN had been the subject of a care order since he was 8, and had not lived at home for 13 years.
The ACCG had offered unrestricted contact at the adult residential placement, located a little over 6 miles away, plus once a month contact in the community.
The issues in dispute before Eleanor King J concerned i) whether Mrs N should be permitted to assist in MN’s intimate care when visiting MN; and ii) whether contact should take place at Mr and Mrs N’s home. The ACCG was not willing to provide the necessary funding for the additional carers who would be needed if MN were to have home contact.
Eleanor King J rejected the invite to conduct a contested ‘best interests’ trial as to contact at the parents home, as it amounted to no more than a hypothetical possibility; it was not an available option now or in the foreseeable future. Eleanor King J was alert to the:
"danger of a blurring of the distinction as between the Court of Protection's statutory duties in a private law context, (namely to consider the best interests of an incapacitated adult), with public law challenges in relation to the willingness, unwillingness, reasonableness or rationality of the services a public authority is willing or able to provide."
The President acknowledged that the appeal raised “fundamental questions as to the nature of the Court of Protection’s jurisdiction…”.
Having conducted an extensive review of the authorities the President concluded as follows:
The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself… The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future.” [Para. 80]
In reviewing the authorities the President provided a helpful example of where, in practice, the lines are to be drawn. If an NHS hospital is willing to provide treatment, and the only obstacle to going ahead is the refusal of the parents to give their necessary consent, then the matter will be judged by applying the best interests test. If, however, the NHS hospital is unwilling to provide the treatment, because of lack of resources, or the priority of other patients or treatments, then the dispute is not a best interests dispute in the CoP, but a public law matter.
In the latter circumstances, the appropriate forum of challenge would be before the Administrative Court. It would be prudent to make any such public law application expeditiously, so as to ensure that when a ‘best interests’ assessment is carried out, all the available options are before the CoP.
The President endorsed the practice of CoP judges undertaking “Rigorous probing, searching questions and persuasion” in respect of a care plan, and if necessary, asking a local authority to go away and think again. However, ultimately, he concluded that the CoP “cannot compel a public authority to agree to a care plan which the authority is unwilling to implement…”.
One important caveat to the restriction on conducting a ‘best interests’ assessment in the CoP on a hypothetical option, rather than the ‘available options’, is exceptionally in the event of a credible human rights claim. Such an analysis may be necessary by the CoP to determine whether the public authority has acted in a way that is disproportionate and incompatible with a Convention right.
The President confirmed that the CoP has jurisdiction to determine human rights claims brought under section 7 of the Human Rights Act 1998. He emphasised, that such a claim must be clearly identified and properly pleaded.
The President made several observations about the unacceptable culture of delay within CoP and failure of parties to effectively case manage the litigation. He repeated the need to flag up well in advance of hearing any jurisdictional issues and legal arguments relating to them, and more generally, the issues, the nature of each party’s case, the facts that need to be established and the evidence to be given. He noted how “depressing” it was that the steps suggested to achieve clarity in CoP cases enunciated in A Local Authority v PB and P  EWHC 502 had not percolated to those involved in the case before him.
Equally, he noted the inordinate length of the bundles, and “unrestrainedly luxurious” use of experts and resultant expenditure of public funds. He again stressed the need to focus on the material issues in the case, and to ensure that cases are dealt with expeditiously and justly.
Use of Declaratory Orders
The President made 3 observations in respect of the use of declaratory orders in CoP, although not a definitive pronouncement. In summary he observed:
i) The use of orders in the form of declaratory relief “might be thought to be in significant part both anachronistic and inappropriate’.
ii) Section 15 MCA 2005 is very precise as to the powers of CoP. Section 47(1) is unlikely to provide any greater power than those provided for by section 15.
iii) A declaration has no coercive effect and cannot be enforced by committal.
He concluded by noting that “unless the desired order clearly falls within the ambit of section 15, orders are better framed in terms of relief under 16...”
The decision in MN (Adult) 2015 draws a clear distinction between decisions that fall within the CoP jurisdiction, and those that should be challenged in the public law arena. On a practical note, the need to negotiate, explore and where necessary, stretch the available options that can be put before the CoP will, no doubt, be at the forefront of each practitioner’s mind.
It also serves as a timely reminder to those practicing within the field of CoP to actively manage cases to ensure that any jurisdictional issues are rehearsed well in advance of trial, and the material issues focused upon.
Article written by Helen Barney.