N v A CCG (2017)

Keywords: DOLS

The Supreme Court heard the appeal in this case (previous judgment known as re MN[2015]). The case addresses a key issue which Lady Hale set out in the following terms:

“what is the decision-maker to do if he has reached the conclusion that a particular course of action is in the best interests of P but the body who will be required to provide or fund that course of action refuses to do so? Specifically, what is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make the decision for himself and members of his family about what should be provided for him?”

The case concerned MN, a young man in his twenties with severe learning and physical disabilities who used a wheelchair, was doubly incontinent and at risk from choking and from frequent epileptic seizures. MN required 2:1 support with personal care and accessing the community and had to have his carers nearby at all times.

MN had been in the care of the local authority since the age of 8. At age 18, he was assessed as qualifying for CHC and responsibility for the provision of his care passed to the CCG. He was placed in a residential care home. Due to a history of conflict between the local authority and MN’s family, the Local Authority applied to the Court of Protection for the local authority to have decision making power regarding his residence and care and to be able to regulate and supervise MN’s contact with his family (the CCG involved was later joined as a party to the case).

Disagreement between the authorities and MN’s family centred on two issues:

  1. MN’s parents wanted him to visit them at their home. An OT had assessed the home environment as being suitable for MN to access for a short visit. However, trained carers (including one trained to administer emergency medication) would have to go with MN, enter the parents’ home in order to settle him and then wait outside for the duration of a visit. Due to the history of difficult interactions between care staff and the family, the care home were unwilling to facilitate visits to the family home and alternative carers would need to be provided – which the CCG was unwilling to fund.
  2. MN’s mother wanted to assist the care home staff with MN’s intimate care during her visits there. An Independent Social Worker had concluded that MN’s mother’s involvement in his care in this way could form an important part of his quality of life, provided she was willing to work with staff. However, the care home were unwilling to allow this because MN’s mother had previously declined to undergo training in Manual Handling (although by the time of this hearing MN’s mother stated that she was willing to do so) and also because of concerns as to the mother’s co-operation. The CCG, therefore, took the position that it would not be in MN’s best interests for his mother to be involved in his intimate care during her visits.

At first instance, Eleanor King J (sitting in the Court of Protection) had ruled that the COP had no jurisdiction to decide these issues. Her reasoning was that the role of COP was to make a decision about MN’s best interests from those options which were available to him. She concluded that Judicial review was the only proper vehicle through which to challenge unreasonable or irrational decisions made by care providers and other public authorities and that COP could only consider such issues where it was contended that a public body’s decision breached P’s human rights (which was not the case here). Therefore, she ruled, the issues raised were not within the COP’s jurisdiction.

 

MN’s parents appealed this decision. Sir James Munby P dismissed the appeal, concluding that “the judge was right in all respects and essentially for the reasons she gave” (para 79) and setting out 4 reasons (para. 82):

  • An abstract inquiry into a factual issue which could not actually affect the outcome of the proceedings was beyond COP’s function
  • COP should not be used to provide a platform or springboard for a possible future judicial review
  • Examining such an issue before the COP risks confusing the distinction between the function of the COP and decisions to be made by public bodies about how to fulfil their duties
  • Allowing such issues to be addressed during proceedings in COP could risk exposing the public authority to impermissible pressure

 

The issue was then appealed to the Supreme Court.

 

On behalf of MN’s parents it was argued that:

  • The COP did have jurisdiction (under s.16(2)(a) MCA) regarding any issue relating to P’s family contact
  • Only after it had been decided what was in P’s best interests, should the funding options be considered. If the issues were considered in the reverse order, this would allow public bodies to undermine COP’s jurisdiction by refusing to fund any option other than their favoured choice

 

In setting out the unanimous decision of the Supreme Court, Lady Hale summarised the history and fundamental purpose of the Mental Capacity Act concluding:

 

“the jurisdiction of the Court of Protection (and for that matter the inherent jurisdiction of the High Court relating to people who lack capacity) is limited to decisions that a person is unable to take for himself. It is not to be equated with the jurisdiction of family courts …There is no such thing as a care order in respect of a person of 18 or over. … the 2005 Act does not contemplate as a norm the conferring of the full gamut of decision-making power, let alone parental responsibility, over an adult who lacks capacity” (paras.24 & 27)

Drawing also on the previous judgment of the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James [2013], she confirmed the Court of Protection:

“has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the “available options”.”

She then proceeded to set out a detailed analysis of the powers available to the Court of Protection under the Mental Capacity Act and, in particular, s.16, noting that “a court order under section 16(2)(a) simply makes the decision. There is no need to declare that the decision made is in P’s best interests.” (para. 28). She also provided useful guidance that, unless the desired order clearly falls within the ambit of s.15 (i.e. a declaration as to capacity and/or lawfulness), orders are better requested under s.16 MCA 2005.

The judgment helpfully identifies that the Court of Protection operates “on a different plane and on different principles from a public authority which is deciding how to exercise its statutory powers and duties to provide services.” (para.36). This recognises that, whilst COP, like any other decision-maker, is bound to act in P’s best interests, entirely different legal criteria govern the statutory duties of a public body to provide services to an individual.

Unlike the two lower courts, the Supreme Court took the view that the issue was not fundamentally one of the jurisdiction of COP, but rather the proper management of a such a case, given the limited powers of COP. Lady Hale recognised the flexibility necessarily involved in COP cases, acknowledging the usefulness of processes of independent investigation, negotiation and mediation often involved following an application to the court. However, she concluded “it does not follow that the court is obliged to hold a hearing to resolve every dispute where it will serve no useful purpose to do so.” (para.39). COP’s case management powers (governed by the overriding objective to deal with cases justly) include powers to identify issues which need a full hearing and which do not and to exclude any issue from consideration. Therefore:

“The court is clearly entitled to take the view that no useful purpose will be served by holding a hearing to resolve a particular issue.” (para. 41)

She set out factors which she considered relevant to such decisions:

  • the nature of the issues;
  • their importance for P;
  • the cogency of the demands;
  • the reasons why the public body opposed those demands and their cogency;
  • any relevant and indisputable fact in the history;
  • the views of P’s litigation friend;
  • the consequence of further investigation in terms of costs and court time;
  • the likelihood that it might bring about further modifications to the care plan or consensus between the parties;
  • and generally whether further investigation would serve any useful purpose.

She rejected the argument that taking such decisions prior to deciding what would be in P’s best interests risked encouraging public bodies to forestall challenges to their decisions by refusing to consider changes to a care plan, pointing out that: “The court can always ask itself what useful purpose continuing the proceedings, or taking a particular step in them, will serve but that is for the court, not the parties, to decide.” (para. 43)

Ultimately, the Supreme Court unanimously concluded:

“This was not a case in which the court did not have jurisdiction to continue with the planned hearing. It was a case in which the court did not have power to order the CCG to fund what the parents wanted. Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do.In those circumstances, the court was entitled to conclude that, in the exercise of its case management powers, no useful purpose would be served by continuing the hearing.” (para. 44)

Discussion

This judgment will be a relief to councils and CCGs. It clarifies and confirms that, whilst COP can and will investigate, explore and encourage the parties to attempt to reach agreement around care planning options, ultimately COP cannot order a public body to provide a particular service which it is not prepared to fund. It sets a clear limit on the lengths public bodies are required to go to on the grounds of ‘best interests’. That said, public bodies should continue to assume that their decision making will be robustly and thoroughly examined in COP cases.

Whilst legally, this decision makes a good deal of sense, it does raise some concern on a practical level. The extremely high hurdles involved both in obtaining legal aid for and in securing leave to bring a judicial review pose substantial challenges to families and advisers who might wish to challenge decisions of a public body (whether under the Care Act or other statutory duties) in relation to the care provided for those who lack capacity. Access to COP is considerably easier and has on occasion acted as a ‘back door’ mechanism to ‘encourage’ public bodies to reconsider decisions. This decision is likely to make it more difficult for those bringing such cases to engineer a COP hearing in which the public body’s decision making can be held up to judicial scrutiny. Nevertheless, it should be noted that COP judges have a wide margin of discretion in making case management decisions and many members of the judiciary are adept at finding a way to further examine clearly and abhorrently unlawful decision-making by public bodies.

Two further notes of interest:

It is particularly important to note that, while care planning decisions frequently involve matters which may engage Article 8 (the right to respect for private/family life), this right is not unlimited and may lawfully be balanced, proportionately, against the economic well-being of the country, where enabling an individual to exercise this right in their preferred manner involves the allocation of limited public resources.

The judgment does not explicitly comment on whether COP has jurisdiction to hear claims for breach of Human Rights. Both lower courts in this case held that, in exceptional cases, it does – so that must be taken as the current position. However, other factors – such as Legal Aid and the availability of damages for past breaches – favour the High Court for Human Rights cases.