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Supreme Court holds that the Court of Protection must focus on available options

The recent Supreme Court judgment in N (Appellant) v ACCG and others (Respondents) is a significant decision that confirms that the Court of Protection (CoP) should only focus on available options when considering P’s best interests and not on options which may be unavailable through, for example, lack of funding.

In this case, MN’s family wished to be involved in his ongoing care but, for reasons set out in our full case briefing, the CCG was unwilling to provide funds to enable family involvement or visits to the family home, leading to a dispute between the CCG and MN’s family which ultimately reached the courts.

As the CCG were unwilling to provide funding, it argued that the CoP should not consider whether family involvement in his care or home visits were in MN’s best interests. According to the CCG, any challenge to their funding decision by the family should take place in the administrative courts via judicial review. These arguments were accepted by the judge at first instance and on appeal.

MN’s family then appealed to the Supreme Court which upheld the original decision in favour of the CCG. The Supreme Court held that the court’s role was to step into MN’s shoes and make a decision on his behalf and, in doing so, the CoP could not make a decision that MN could not make. The court stated that if funding decisions are to be challenged this was indeed a matter for the administrative courts and the CoP should not be used to force public law decisions by the back door. However, Lady Hale’s judgment stressed that this does not mean a care provider or funder can pre-empt the court’s decision by refusing to contemplate changes to the care plan.

For further information about this important case please read our full case briefing which can be found here.