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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:-

For the judgment and a fuller summary, from which this item is derived, written by Alison Easton of Coram Chambers, please click here.