Re MN (Adult)  EWCA Civ 411
Keywords: Best interests decision making; limits of powers of CoP
MN, a 22 year old man with profound disabilities, lacked capacity to make relevant decisions for himself. He was living in an adult residential placement RCH (having been in local authority care since age 8). MN’s parents, whilst reluctantly accepting that his current placement is appropriate, ultimately wanted him to live with them at home. MN’s care plan provided for regular contact with his parents at RCH and once a month in the community. They wanted MN to visit their home for contact but the CCG involved was not willing to provide the necessary funding for additional carers who would be necessary for this to occur. MN’s parents appealed against the ruling that it was in MN’s best interests to have contact with them at the locations and frequency identified in his care plan.
In dismissing the appeal, Sir James Munby P observed that this appeal raised fundamental questions as to the nature of the Court of Protection’s jurisdiction in a case where a public body was unwilling to provide, or to fund, the care sought.
Sir James Munby P’s judgement contains two key paragraphs, which are worth quoting here.
“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.” (Sir James Munby P in Re MN (Adult)  EWCA Civ 411 at 80)
“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. And 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.” (Sir James Munby P in Re MN (Adult)  EWCA Civ 411 at 81)
ANALYSIS: The Court of Protection’s jurisdiction is limited to considering the best interests of P and does not extend to pressurising public bodies to make different decisions. Situations can arise where there is an impasse between a court which declines to approve a care plan and an authority which declines to amend it. When such a situation does arise, it is the court that must give way and accept the dilemma of choosing between the options available, even if that means choosing the lesser of two evils.
Historically, the courts have been faced with this situation in practice quite rarely. However it seems highly likely in the current climate of unprecedented budgetary constraints that it will arise more frequently in the future.
Given the clear position set out in this case (and others), it is important to bear in mind that Judicial Review remains the appropriate mechanism through which to challenge unreasonable or irrational decisions by public bodies.