Court of Protection Case Round Up – February 2014
Court of Protection in the news (again)
The Court of Protection is rarely out of the news these days it seems. The latest coverage appeared in the Independent on Sunday. The subject in the limelight at the moment is a paper submitted by barristers and solicitors working practising Court of Protection work expressing concern about the “marked variation” in Judge’s willingness to listen to Patients’ wishes. The paper is quoted as saying “there is marked variation in the willingness of Judges to meet P and allow P to give evidence, or put across his/her views in whatever way is suitable”. “We have considerable doubts that the current system which does not presume that Judges should have ‘personal contact’ before making decisions about their capacity or best interests is compatible with the European Court of Human Rights”.
The context for this is the House of Lords committee which is currently looking at the working of the Mental Capacity Act. The report is due out later this year.
Can the Court of Protection only choose from the available options for P when making a best interests decision?
This point, which has been in the background for a number of years as the Mental Capacity Act came into force, was examined in detail in ACCG & Anor v MN & Anor [2013] EWHC 3859(COP). Essentially, the Court decided that it could only make a decision based on the options that would be available to P if he had mental capacity. The case involved a young man who was profoundly disabled. The Court was asked to decide where he should live, what education he should receive, what contact he should have with his mother, father and other family members and how that should be regulated.
Relations between the local authority and the family had been subject to a number of disputes already, going back to P’s early childhood (P is referred to in the judgment as MN). At its height, the father was convicted of assaulting a social worker. An attempt to resolve matters at a round table meeting had failed and “a Court Order [was] now needed in order to regulate P’s life and his best interests and to bring this protracted litigation to an end”.
P’s parents had six children, three of whom were significantly disabled and lived in residential care away from their parents. The local authority was concerned about parental neglect and a care order was made in 2001. The Judge did make it clear there had never been any doubt as to the parents’ love for and commitment to any of their children.
As is often the way of these things, it was the proposed arrangements for P’s care as he reached 18 which gave rise to these proceedings. At the time the case was brought, P was in a residential placement which an independent social worker instructed by the Official Solicitor considered provided “a safe, settled and supported environment to [P] that can also be pro-active with regard to care provision particularly in relation to [P’s] physical care needs”. The parents had accepted the position as to residence ‘for the time being’ although they did not accept the independent social worker’s view of that particular placement. They had not however been able to identify any other facilities which would be better and the local authority had said they would not fund a package which would involve P living at his parents’ home. Although his parents still believed that it would be in P’s best interests to live at home, nobody else in the case appeared to.
At the time of the hearing, the contact arrangements for the family to visit P in the placement had been greatly relaxed and the family could in fact visit him whenever they chose provided they gave an hours notice, as was the case for visiting arrangements for the other residents. Relations with the statutory authorities were still difficult however. The Judge did comment that “a feature of the attitude of the parents throughout the papers is the resistance to allowing care providers into their home”. The Judge also quoted the independent social worker’s report which said “there is no evidence that the parents are willing or able to work with services in such a way. The history available with regard to Mr and Mrs N’s relationship with statutory and voluntary services has at best been one of disharmony, suspiciousness and disagreement to one of reported hostility, including dismissive and hostile (including reported physical aggressiveness) behaviours”.
The occupational therapist had said that in principle and from an occupational therapist’s perspective only, P could go for a short visit to the family home. However, personal care could not be carried out there, which with P’s incontinence would clearly be a challenge. Carers would have to wait outside the family home and the parents would have to allow staff into the house to settle P. Because of a history with the family, only the manager of the residential placement and her deputy were willing to act as carers in this scenario. Because of this, the residential placement was not willing to facilitate P visiting the parents’ home. In order for contact to happen therefore the CCG would have to provide alternative carers. The CCG indicated they would not do this.
The Judge considered whether she was limited to a choice from the available options, which would of course exclude P visiting home because the CCG had said they would not fund it, or whether she could make a decision which was in P’s best interests whether or not the funding was available. The detailed decision is well worth reading for practitioners particularly interested in this area. The Judge also made it clear that it was possible to bring a public law challenge against a statutory authority which was refusing to fund. The Judge did comment that there was no suggestion in this case that the CCG or local authority were in breach of any of their statutory duties or had failed to respect any of the parties’ human rights. The Judge noted that the parents could visit P as often as they wished in placement and referred to the parents stating that they were not taking up all the contact that was available for financial reasons.
The Decision
The Judge said that “the Court should not say that notwithstanding there is no funding for contact at his parents’ home, the Court will nevertheless offer that hypothetical option”. The Judge re-stated the possibility for the challenge of decisions made by care providers and other public authorities to judicial review and said that there may be cases where people may argue that failure to fund contravenes human rights. However, this did not appear to be one of those cases. The Judge took the view that she could not include the possibility of contact at the family home in taking into account the possibility of contact at the family home in making a best interests decision because it was not an option.
