The long-awaited decision of UKSC on what decisions on behalf of P the court will consider when a public body might not provide the option in question

Friday 26 May 2017

N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22

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N v ACCG and others [2017] UKSC 22

The Supreme Court clarifies the role of the Court of Protection where there is a dispute between the funders or providers of health or social care for a person who lacks capacity and members of his or her family about what should be provided.

Background to the case

N is a young man with profound disabilities who lacks capacity to make decisions about his care. He requires carers to be in attendance throughout the day and night.

He was made the subject of a care order when he was eight and shortly before he turned 18 the local authority issued proceedings in the Court of Protection seeking orders under the MCA 2005 that it was in his best interests to reside in a care home and for contact with his parents to be regulated and supervised by the local authority. Responsibility for his care passed to the NHS local Clinical Commissioning Group (CCG) when he turned 18.

During the course of the proceedings the issues between N’s parents and the CCG had narrowed to whether N could visit the family home and whether his mother could assist care home staff with his intimate care when she was visiting him there.

The CCG considered that neither were in his best interests; the first would require additional trained carers which it was not prepared to fund, and the care home staff had concerns about the second, after the parents had declined an offer of the necessary training in manual handling. There had been a history of non-cooperation by the parents, although by the time of the hearing N’s mother had agreed to undergo the necessary training.

The CCG argued that the Court of Protection could only decide between the ‘available options’ and that it  was inappropriate to try to obtain a best interests declaration to put pressure on them to make further funding available.

The judge, Eleanor King J, agreed that she could not consider the parents’ proposals for this reason, accepting the argument  that it went to the Court’s jurisdiction. She accepted that in rare cases where a public authority might be acting in breach of convention rights by refusing to fund a particular form of care that could be raised in the Court of Protection by way of a formal application under section 7 of the Human Rights Act 1998.

However, in this case, as contact at the family home was not an available option now or in the foreseeable future, the court should not embark upon a best interests analysis of contact at the parents’ house as a hypothetical possibility. She declared that the contact plan proposed by the CCG was in N’s best interests. Sir James Munby upheld the judge’s decision in the Court of Appeal.

The Supreme Court’s judgment

The Supreme Court, with Lady Hale giving judgment for the court, unanimously dismissed the parents’ appeal. She clarified that it was not that the Court of Protection lacked jurisdiction to continue with the planned hearing but rather that it did not have power to order the CCG to fund the parents’ plan, nor to order the actual care providers to do that which they were unwilling or unable to do. The judge had therefore been entitled to conclude that no useful purpose was served by continuing the hearing.

The fact that the court has no greater power to take a decision than P would have had himself means that it too can only choose between the ‘available options’. Nor can the court use its powers to put pressure upon a local authority to make particular decisions in exercise of its statutory powers and duties to provide public services. Such decisions can instead be challenged on judicial review principles, where the legal consideration for the public authority and for the court will be different from those under the MCA.

Unlike the Children Act 1989 the MCA 2005 does not contemplate the grant of the full gamut of decision-making power, let alone parental responsibility, over an adult who lacks capacity. Whilst decisions on health or social care services may engage the right to respect for private (or family) life under Article 8 ECHR, decisions about the allocation of limited resources may well be justified as necessary in the interests of the economic well-being.

The issue was not one of jurisdiction, since the Court of Protection clearly had jurisdiction to make declarations and orders under section 15 and 16 of the MCA. The question was rather how N’s case should have been handled in the light of the limited powers of the court.

The court has wide case management powers, which include the identification of issues which need full investigation and is entitled to take the view that no useful purpose would be served by a holding a hearing to resolve other issues. There were good reasons for thinking that N’s parents’ wishes were impracticable and the CCG had good reasons for rejecting them. It would be disproportionate to devote any more of the court’s scarce resources to resolving matters.

Since the court did not have power to order the CCG to fund what N’s parents wanted, nor to order the actual care providers to do something they were unwilling or unable to do, the judge was entitled to conclude that no useful purpose would be served by continuing the hearing.

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