Court of Protection Image - hands holding

Case briefing: the role of the Court of Protection and available options

The Supreme Court has recently handed down judgment in the case of N (Appellant) v ACCG and others (Respondents). This is a very significant decision, as it addresses the role of the Court of Protection, the court’s duty to actively manage all cases and the importance of focusing on available options when considering P’s best interests.

The case facts

MN is a “profoundly disabled young man”, who was born with severe learning and physical disabilities. He is now in his early twenties and lives in a care home, with 2:1 support throughout the day, a waking night carer and a further sleeping night carer. His placement and care is funded by his local CCG.

MN is part of a large, very close family, and his parents remain very involved in his care, though unfortunately they have not always had a good working relationship with the CCG, the local authority responsible for MN’s care or the care provider. His parents reluctantly agreed during the course of proceedings that, for the time being, MN’s placement is in his best interests, but a dispute arose over whether MN could visit his parents at the family home and whether his mother could assist his carers with intimate care.

If MN were to visit his parents at home, he would have to be accompanied by trained carers, but unfortunately the majority of his carers were unwilling to accompany MN to his parent’s home, as they feared that his parents would interfere with MN’s care and refuse to cooperate with them. The care home was therefore unwilling to facilitate visits, which meant the CCG would have to source and fund alternative carers to accompany MN on any home visits. Similarly, given past issues the care home were unwilling to allow MN’s mother to assist with personal care, as they were concerned that she had declined the manual handling training offered to her and carers were concerned that she would not cooperate with them. MN has a seizure disorder, which makes hoists and any moves particularly challenging.

Shortly before the final hearing, the CCG argued that the Court of Protection should not consider whether it is in MN’s best interests to visit the family home or be supported by his mother during personal care, as the CCG was unwilling to fund these options. They argued that the Court of Protection can only choose between available options on behalf of P and, as the CCG was unwilling to fund and secure the support that would be necessary to facilitate these events, they were not available options. If MN’s parents wished to take issue with the decision not to fund the required support, this should take place in the administrative courts by asking for a judicial review of the CCG’s decision.

The judge accepted this argument. King J noted that the role of the Court of Protection is to step into the shoes of the person lacking capacity and make a decision for them. If MN had capacity, he could express a wish to visit the family home or for his mother to assist carers during his personal care, but he would not be able to compel the CCG to fund carers to help him visit his family’s home or force carers to allow his mother to assist during care. The judge further decided that the court should not embark upon a best interests analysis of these options, when they are purely hypothetical. She therefore declined to consider the issue of whether it would be in MN’s best interests to visit the family home or for his mother to assist with care.

His parents appealed this decision to the Court of Appeal, which upheld the judge’s decision, and thereafter to the Supreme Court.

The Supreme Court’s decision

MN’s parents argued that the best interests analysis should come before the funding decision. Only once it has been decided that an option is or is not in P’s best interests should the funding options be considered. They accepted that the Court of Protection cannot compel a public body to fund something they are unwilling to do, and that if they wished to challenge a funding decision it would have to be by way of judicial review, but they argued that public bodies ought to give careful consideration to the court’s decision about best interests when making that funding decision.

The Supreme Court rejected this argument and upheld the initial decision of King J. The Court of Protection should not be used to put pressure on public bodies to fund certain options or force public law decisions by the back door. If a party wishes to challenge a funding decision, they will have to use the correct channels and the judicial review procedure to do so. As noted above, the court’s role is to step into P’s shoes and make a decision on their behalf, they cannot make any decisions that P himself would not be able to.

In these circumstances, Lady Hale framed the question as to how cases should be managed in the light of the limited powers of the court. Even though the court can consider all issues relating to P’s best interests, such as contact with family and care plans, the “court is not obliged to hold a hearing to resolve every dispute where it will serve no useful purpose to do so.”

Lady Hale confirmed that the Court of Protection has wide case management powers and a duty to actively manage cases. She noted that the court is entitled to take the view that no useful purpose will be served by holding a hearing to resolve a particular issue. When considering whether this is the case, the court should consider all relevant factors. In this case the court would have been correct to find that the issues raised by his parents, while important to P, were not as important as the overall decision as to where he should live, the CCG had good reasons for denying the parent’s wishes, and P’s litigation friend (the Official Solicitor) supported the CCG’s decision. Lady Hale concluded that the court was right to find that it would be disproportionate to devote any more of the court’s limited resources to considering these matters.

Very importantly though, Lady Hale concluded by stressing that case management does not mean that a care provider or funder can pre-empt the court’s decision by refusing to contemplate changes to the care plan. The court should always consider whether continuing proceedings will serve a useful purpose, and it must be for the court to decide whether proceedings ought to continue, not the parties.

Impact

It has long been accepted that the Court of Protection can only decide between available options, and this decision resolutely confirms that. The more interesting issue is whether public bodies and those funding care can pre-empt the court from considering a particular issue by deciding not to fund a particular option.

Lady Hale confirmed that in some circumstances this may be the outcome, but it will be for the court to weigh up whether, in all the circumstances, proceedings ought to continue. Her judgment suggests that when the issue is of particular importance to P, the funding body’s decision lacks cogency, or continuing the case may bring about further modifications to the care plan or lead to a consensus between parties, it may be right for the court to continue to consider the matter.

We will be able to discuss these factors with you in relation to each of your specific cases in order to determine the best way forward for our clients. Please contact us to discuss this further.