How wide is the Court of Protection's discretion?

Can the Court of Protection only choose from the available options for a person who lacks capacity when making a best interests decision? Yes says CA

Facts and comment

The legal  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). That case was appealed and Judgment has just been handed down. The outcome is the same. Essentially, the Court decided that it could only make a decision based on the options that would be available to the person concerned if he had mental capacity.

The case involved a young man (MN) 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 MN’s early childhood.  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 MN’s life and his best interests and to bring this protracted litigation to an end”. 

MN’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 MN’s care as he reached 18 which gave rise to these proceedings.  At the time the case was brought, MN was in a residential placement which an independent social worker instructed by the Official Solicitor considered provided “a safe, settled and supported environment that can also be pro-active with regard to care provision particularly in relation to MN'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 MN living at his parents’ home.  Although his parents still believed that it would be in MN’s best interests to live at home, nobody else in the case appeared to.

At the time of the first hearing, the contact arrangements for the family to visit MN 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, MN could go for a short visit to the family home.  However, personal care could not be carried out there, which with MN’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 MN. 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 MN 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 MN visiting home because the CCG had said they would not fund it, or whether she could make a decision which was in MN’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 MN 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 Original 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.

The Decision on Appeal

The decision on appeal was supportive of the original decision.  Where an option is not available, the Court of Protection could not and should not consider that as an option when working out what is in a person's best interests. The Court was understandably cautious about allowing Court of Protection proceedings to be used as a back door to put pressure on another body, in this case the CCG, to fund care. The Court drew parallels with other cases where, for example, Children Act proceedings had been brought as an attempt to achieve a different outcome on an immigration or housing issue. The Judge on appeal particularly endorsed the observations made in the first Judgment, saying that "I respectfully agree with every word of that and would wish to emphasise in particular the point made by the Judge in the final sentence".  Those comments were:

"… There have quite properly been negotiations between the parties in relation to the options that are in fact available …  This is precisely the type of negotiation which is to be encouraged in Court of Protection cases.

There will undoubtedly be cases where courts wish to explore with providers the possibility of funding being made available for packages of care which may, for example, have been identified by independent social workers. In my judgment, such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a 'best interests' trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient's best interest.

I respectfully agree with every word of that and would wish to emphasise in particular the point made by the judge in the final sentence;

"avoid a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to 'best interests', with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings. 
Such an approach undermines the first principle that the court can only make a decision that the incapacitated person can make from choices which are available or can, through discussion and negotiation, be made available."

The appeal Judge made the point that

"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.

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".

The appeal Judge also endorsed the trial Judge's views when she identified the need to "avoid a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to 'best interests', with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings". 

Endorsed with the comment "precisely so". 

The trial Judge added "the present case, it might be thought, illustrates the point to perfection. The proposal was that the judge should spend three days, poring over more than 2,000 pages of evidence, to come to a 'best interests' interest on an abstract question, and all for what?" 

One further point for practitioners which was raised in this case relates to the conduct of Court of Protection proceedings themselves.  There has been a fair bit of Judicial comment of late lamenting the delays inherent in Court of Protection proceedings and contrasting the way in which other cases such as family ones are dealt with, including "the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act.  As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time limit, the length of care cases has halved in 2 years". 

In contrast to this, "Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would be now say if it took 5 years – or 18 months – to decide the future of an 8 year old?  I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court". 

The appeal Judge in this case endorsed "every word of that".

Case: MN (Adult) [2015] EWCA Civ 411 (07 May 2015)