The Supreme Court held that the Court of Protection may decide only between options available to a person lacking capacity and cannot require care providers or funders to supply services they are unwilling to provide. Where a clinical commissioning group and care home refused to facilitate or fund the contact arrangements sought by the parents of a profoundly disabled young man, the judge was entitled to decide that a full hearing of the disputed facts would serve no useful purpose. The appeal was dismissed.
Background
MN was a young man who needed round-the-clock care and lacked capacity to decide where he should live and what care he should receive.
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When his childhood care order was due to end, the local authority applied to the Court of Protection. A clinical commissioning group then took responsibility for his care. He lived in a residential care home and the Official Solicitor represented him in the proceedings.
The parents accepted the residential placement for the time being but wanted visits to the family home. Those visits would require trained staff. The care home would not provide the staff, and the commissioning group would not fund alternative carers.
His mother also wanted to help with his personal care. The care provider was unwilling to facilitate that arrangement.
The courts below
A three-day hearing was listed for November 2013. The evening before, the local authority argued that the Court of Protection had no jurisdiction: the parents’ proposals were not available options because the commissioning group would not allow, arrange or fund them, and those public-law decisions could be challenged only by judicial review. Eleanor King J accepted the argument and declined to hear the evidence or resolve the factual disputes. She held that the court has no greater powers than MN would have if of full capacity. A capacitated person could accept the care home’s conditions, fund care privately or negotiate, but could not force the providers to permit his mother to assist with intimate care. She was satisfied that the commissioning group’s contact plan was in his best interests and made declarations that residence at the current home, or another placement identified by the responsible body, and contact under the detailed plan were in his best interests.
The Court of Appeal dismissed the parents’ appeal. Sir James Munby P held that the judge was right. The Court of Protection should not inquire into an abstract issue whose answer could not affect the outcome, provide a platform for possible judicial review, confuse its own functions with those of a public authority, or expose the authority to impermissible pressure.
The Supreme Court’s reasoning
Lady Hale, with whom Lord Wilson, Lord Reed, Lord Carnwath and Lord Hughes agreed, explained that the Mental Capacity Act 2005 establishes a scheme under which a decision-maker stands in the shoes of the person who cannot decide, known as P, and decides in P’s best interests. The decision-maker can make only a decision that P himself could have made and is in no better position than P. Sections 16 and 17 allow the court to decide matters such as where P is to live and what contact he is to have, and to give or refuse consent to treatment. They do not empower the court to require a named care home to accommodate P, a particular person to visit him, a provider to give a particular treatment, or a named person to take over his health care. That limit is consistent with the Law Commission’s report and with Aintree University Hospitals NHS Foundation Trust v James: the court has no greater powers than the patient would have if of full capacity and is not concerned with the legality of NHS policy.
The duty to decide what is in P’s best interests must be reconciled with that limit. The court can choose only between the available options. It cannot create options where none exist or oblige an unwilling provider or funder, just as a family court cannot oblige an unwilling parent to accommodate a child or an unwilling health service to provide particular treatment. Health and social care decisions are governed by the authorities’ own statutory schemes, eligibility criteria and resource considerations. They may be challenged by judicial review or under the Human Rights Act 1998, including where article 8 is engaged, but those proceedings apply different principles. Allocation of limited resources may be justified in the interests of the country’s economic well-being.
The issue was not jurisdiction in the strict sense. The court was properly seised of the application and could make orders under the Act. The question was how the case should be handled given the court’s limited powers. The Court of Protection has extensive case-management powers and may exclude an issue or decide summarily that a hearing would serve no useful purpose. Relevant considerations include the nature and importance of the issues, the cogency of the competing positions, indisputable history, the litigation friend’s views, cost and court time, and whether further investigation might produce modification or consensus. A provider cannot pre-empt that judgment merely by refusing to contemplate change; the court decides whether continuation would be useful.
Those considerations supported the course taken. The issues had narrowed and, although important to MN, were less important than where he should live. The history gave good reason to regard the parents’ wishes as impracticable and the commissioning group’s opposition as cogent. The Official Solicitor supported the group. Further investigation was unlikely to produce modification or consensus and would be disproportionate. In substance, Eleanor King J had concluded that no useful purpose would be served by continuing the hearing, and she was entitled to do so. The court had no power to order the commissioning group to fund what the parents wanted or the care providers to do what they were unwilling or unable to do.
Verdict: The Court unanimously dismissed the parents’ appeal. The Court of Protection had jurisdiction to hear the case but could not compel the funding body or care provider to make their proposed arrangements available. The judge was entitled to conclude that a further hearing would serve no useful purpose.
