Legal Update – Court of Protection


N v ACCG & Others [2017]: the Supreme Court rules on the approach the Court of Protection should adopt when a care provider is unwilling to provide or fund care sought by a person lacking capacity or by their family.

The Facts

This case concerned young adult, MN, with severe physical and learning disabilities, who lived in a residential care home. His care was being funded by his local CCG. The fact that MN lacked capacity to make decisions about his place of residence and care arrangements was not in issue. His parents wished that MN be allowed to come home for visits and for his mother to provide his personal care. The care home was unwilling to facilitate these visits as it would necessitate employing and training up new carers to accompany MN. MN’s existing carers refused to accompany him on home visits due to an alleged history of aggressive and intimidating behaviour towards them by the parents. Based on past experience, the care home had no faith that the mother would cooperate with staff in the provision of personal care. The CCG backed the care home’s stance stating that it was not in MN’s best interests to have home visits or have his personal care provided by his mother. Therefore the care home was unwilling to facilitate the parents request and the CCG was unwilling to fund it.

Court of Protection decision

The case came before the Court of Protection for hearing in 2013 on the application of the Local Authority and the CCG. The Official Solicitor, representing MN, supported the CCG’s stance that the care arrangements sought by the parents were not in MN’s best interests. The CCG argued that since it had already made a decision not to allow or fund such care the Court of Protection had no power to order it to do so. The judge agreed stating that, when determining what was in MN’s best interests, the Court of Protection could only choose between ‘available options’. As the care arrangement sought by the parents was not an ‘available option’ then the court was not in position to rule upon whether it was in MN’s best interests. The judge held that the court had no greater powers than the patient would have if he were of full capacity.

The parents appealed to the Court of Appeal who upheld the Court of Protection decision. The parents then appealed to the Supreme Court.

Supreme Court decision

The Supreme Court dismissed the parents appeal. In the leading judgment Lady Hale stated:

So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It 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”.

As the care arrangement the parents were seeking was not an ‘available option’, Lady Hale concluded:

[T]he court did not have the 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.

Comment

The Mental Capacity Act 2005 establishes a comprehensive framework for decision making on behalf of people who lack capacity to make decisions for themselves. The decision-maker stands in the shoes of the person [P] who is unable to make a decision and must act in P’s best interests. It is axiomatic that the decision-maker can only make a decision which P could have made themselves had they not lacked capacity. The decision-maker cannot make a decision which is not available for P to make even if they consider it to be in P’s best interests.

Consequently, when the Court of Protection is the decision-maker its function is simply to decide what course of action is in P’s best interests from the ‘available options.’ The Court of Protection cannot be used as a means of forcing commissioners or providers of care to fund or supply services which they are unwilling or unable to provide. However, in fulfilling this function the Court of Protection can still be expected to robustly probe the decision-making behind those available options particularly if it has led to the P’s preferred care option not being included.

Judicial review by the Administrative Court remains the appropriate legal process for challenging decisions about care funding and provision. Unlike Court of Protection proceedings, the focus of judicial review is on the legality or procedural regularity of the decision rather than the best interests of P.

The Supreme Court decision in N v ACCG & Others will no doubt come as welcome news to commissioners and providers of care who will no longer face the risk of having their care package and funding decisions challenged in the Court of Protection.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk


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