President gives guidance as to Court of Protection’s powers to impose care plans on reluctant local authorities
Parents fail in appeal to secure a ‘best interests’ approach to son’s care
In MN (Adult) [2015] EWCA Civ 411, the President, Sir James Munby, has provided guidance as to the approach the Court of Protection should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as in this case, by the patient's family. He undertook a comprehensive review of the applicable authorities and in particular highlighted the important principle set out by the House of Lords in A v Liverpool City Council [1982] AC 363 and re-stated by the House in In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791.
The appeal concerned MN who was born in 1993 and suffered from profound disabilities and lacked capacity to make relevant decisions for himself. When MN was 8 years old he was made the subject of a care order on the application of the local authority, ACC. Shortly before his 18th birthday the court approved MN's move from his residential children's placement to an adult residential placement, RCH, where he continues to live. The clinical commissioning group, ACCG, took over responsibility from ACC for the funding of MN's placement at RCH when he turned 18. The present proceedings were brought by ACC and commenced on 25 August 2011. MN's parents, Mr N and Mrs N, accepted, reluctantly, that MN should live at RCH, where they had regular contact with him but their aspiration remained that he should return to live with them at home.
The issues for the final hearing were (i) whether Mrs N should be permitted to assist in MN's intimate care when visiting him at RCH and (ii) whether contact should also take place at Mr and Mrs N's home. As to (i), RCH was not willing for this to be done. As to (ii), ACCG was not willing to provide the necessary funding for the additional carers who would be needed if MN was to have home contact.
Mr and Mrs N contended that the judge should embark on a contested 'best interests' trial in relation to both issues. ACCG's position was that in a welfare case the court was limited to choosing between the available options and did not have the power to order the applicant to produce other options, although the court might make inquiries of the first applicant of other potential options. Therefore, ACCG submitted that there was only one residential package which it was prepared to fund and their plan for contact (unrestricted at RCH plus once a month in the community) afforded the parents ample opportunity to see MN. The provision offered, they submitted, discharged their statutory duties towards MN.
Eleanor King J, as she then was, accepted the submissions of ACCG and determined that as contact at the family home was not an available option now or in the foreseeable future the court would not embark upon a best interest analysis of contact at the parent's home.
Mr and Mrs N appealed. Their appeal was dismissed.
The President, giving the unanimous judgment of the Court, observed that this appeal raised fundamental questions as to the nature of the Court of Protection's jurisdiction and provided the following guidance:-
- A child, even if a ward of court, has no special privileges, nor has the family court any power to obtain for a child access to resources which would not otherwise be available: Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7.
- This principle also applies in the Court of Protection: 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; Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67, [2014] AC 591.
- When the court determines welfare issues in respect of a child or a best interest decision in relation to an incapacitated adult the court must choose from the available options the future which will be best for the children/incapacitated adult. The court cannot undertake a judicial review approach and cannot create options where none exist: Holmes-Moorhouse v Richmond upon Thames London Borough Council; Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712.
- The family court and the Court of Protection may try to persuade a public authority to act in what the court considers to be the best interests of the child; however, these court must not allow themselves to be used to put pressure on a public authority; Holmes-Moorhouse v Richmond upon Thames London Borough Council; In R v Secretary of State for Home Department ex p T [1995] 1 FLR 293.
- It is impermissible for the court to exercise its powers so as to interfere with the statutory powers of a public authority but there is no objection to the court exercising its jurisdiction in order to assist a public authority: In re D (A Minor) [1987] 1 WLR 1400, 1413.
- The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. In the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement.
- The Court of Protection has the power to direct the local authority to file evidence or to prepare and file a further plan, including, if the court directs, a description of the services that are available and practicable for each placement option being considered by the court. The local authority is obliged to do so even though the plan's contents may not or do not reflect its formal position, for it is not for the local authority (or indeed any other party) to decide whether it is going to restrict or limit the evidence that it presents: see Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431.
- Court of Protection proceedings are not to be utilised for an inappropriate purpose and the court should not spend time considering what it thinks is in the best interests of P, only to be met by the relevant public authorities asserting that the services sought will not be provided by them. The Court of Protection should not be routinely asked to make hypothetical decisions in relation to 'best interests', with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings. Judicial review remains the proper vehicle through which to challenge unreasonable or irrational decisions made by 'care providers' and other public authorities.
- If a human rights issue is properly raised and pleaded and appears to the court on the pleadings to have some credibility, the court may choose exceptionally to conduct a best interest analysis which includes a consideration of hypothetical options. This would be ordered so as to determine whether the assertion that there is a breach of a party's Art 8 rights, consequent upon the provider failing to provide funding for their preferred option, has been made out.
- The Court of Protection (which in this respect can be in no worse position than the family court or the Family Division) has jurisdiction to determine a human rights claim brought under section 7 of the Human Rights Act 1998 but such a claim must be clearly identified and properly pleaded.
- Unless the desired order clearly falls within the ambit of section 15, orders are better framed in terms of relief under section 16 and that, if non-compliance or interference with the arrangements put in place by the Court of Protection is thought to be a risk, that risk should be met by extracting appropriate undertakings or, if suitable undertakings are not forthcoming, granting an injunction.
- Practitioners are reminded of the need for careful case-management and the observations of Charles J in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166.
- The time may now have come to introduce into the Court of Protection procedures similar to those set out within the Public Law Outline introduced by FPR 2010 PD12A. In this regard it is noted that the Court of Protection Rules Committee is actively considering the need for reform.
- Proper compliance with PD13B is essential and should be rigorously enforced by Court of Protection judges. In particular, proper compliance with PD13B, paras 4.2, 4.3, 4.6 and 4.7, which judges must insist upon, will go a very long way to meeting the concerns identified by Charles J in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166.
- Consideration is required to be given to the early amendment of Rule 121 to bring it into line with section 13(6) of the Children and Families Act 2014 which provides that expert evidence must be "necessary to assist the court to resolve the proceedings justly."
For the judgment and a fuller summary, from which this item is derived, written by Alison Easton of Coram Chambers, please click here.
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