Related Sector: Health & Social Care

On Wednesday 22nd March 2017, the Supreme Court handed down their judgment  in the case of  N v ACCG (2017) UKSC 22.

1. Introduction

Essentially this case involves the conventional distinction between proceedings in the Administrative Court and proceedings in the Court of Protection and reminds us of the sometimes fraught interface between the public law duties owed by a public authority, in this case the NHS, and the statutory duties of the Court of Protection in a private law context around best interests for incapacitated people.   It also looks at the exceptional circumstances when a party can require the Court to go beyond a consideration of the options actually on the table.

Often the NHS and Local authorities as “public authorities” face very difficult decisions when considering what services they must or may, provide to people pursuant to various statutory duties and powers.  

Public law challenges in Judicial Review through the Administrative Court often involve the application by the NHS or Local authorities over public law principles such as willingness, unwillingness, reasonableness and the rationality of services and what at the end of the day they are willing and able to provide.

As resources become even tighter, some of these public law decisions do not sit comfortably with P or P’s family who perhaps are unable to understand that at the end of the day people are assessed against their “needs” not “wants” and a public authority only has a duty to meet assessed eligible unmet “need” and not P’s or P’s family “wants”.

2. Summary of the case

N is a profoundly disabled man, now in his twenties.  He was taken into the care of the local authority under a care order as a child of 8, due to his parents not being able to co-operate with the authorities in meeting his needs.  His disabilities require that carers are in attendance throughout the day and night.  

3.  N’s journey through the Courts

Court of Protection

This case began its life in the Court on Protection in 2013 before Eleanor King J (as she was then) in ACCG & ANOR v MN & ANOR (2013) EWHC 3859 (CoP) as an application for a declaration as to where a young man should live and receive education and care and for regulation of his contact with his parents and other family members.  

Prior to N becoming 18, the local authority issued proceedings in the Court of Protection seeking orders pursuant to the Mental Capacity Act 2005 that

•    It was in N’s best interests to reside in a care home, and
•    That contact with his parents should be regulated and supervised by the local authority

Responsibility for his care passed to the NHS when he turned 18 as he was entitled to NHS Continuing Healthcare. The CCG were prepared to fund the care home and facilitate the parents to be able to attend the care home and have contact with N.  

In addition to the CCG offer the parents wanted the CCG to fund N so he could visit the family home and for N to have supervised contact there with additional trainer carers plus be able to attend the care home and be involved with intimate care of N.

The CCG having identified N’s needs were not prepared to fund the contact at home nor supported the family being involved with the intimate care.  This was not put forward as an “available option” to N or his family.

N’s parents were very unhappy and argued that the right way for the Court of Protection to approach the issues would be to focus firstly on what would be in N’s best interests, and then turn to consider the issue of funding.  This would mean the Court of Protection basically putting pressure on the CCG to spend additional funds on providing for this care.

Outcome

In summary Eleanor King J, having conducted an extensive review of all the authorities, concluded with the dicta of Baroness Hale in Aintree v James (2013) UKSC 67 to the effect that the Court of Protection has no greater powers than P would have if they had full capacity.

She noted that: “[a]n inevitable consequence of a person lacking capacity is that a public authority will often be providing services to that incapacitated person pursuant to various statutory duties. There is a danger of a blurring of the distinction as between the Court of Protection’s statutory duties in a private law context, (namely to consider the best interests of an incapacitated adult), with public law challenges in relation to the willingness, unwillingness, reasonableness or rationality of the services a public authority is willing or able to provide” (paragraph 34).

She rejected the submission on behalf of the parents and noted that this could mean that the Court of Protection  “would potentially be using a best interests decision as a means of putting pressure upon the ACCG to allocate their resources in a particular way and in doing so would be going against the first principle now enshrined in Aintree that this Act is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further” (paragraph 52).

Eleanor King J noted that: “57.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."

Court of Appeal

The parents appealed the decision and the case was heard in the Court of Appeal in 2015 In the matter of MN (An Adult) (2015) EWCA Civ 41.

Outcome

Sir James Munby P handed down the judgment agreeing with Eleanor King J, and noted “The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future.

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.”

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.

The President identified four reasons why the Court of Protection should not embark upon hypothetical examinations of where an individual’s best interests lie:

  • It is not the proper function of the Court of Protection to embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it;
  • It is not a proper function of the Court of Protection (nor of the family court of the Family Division) to embark upon a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court.
  • Such an exercise runs the risk of confusing the very different perspectives and principles which govern the exercise by the Court of Protection of its functions and those which govern the exercise by the public authority of its functions – and, in consequence, the very different issues which arise for determination in the Court of Protection in contrast to those which arise for determination in the Administrative Court.
  • Such an exercise runs the risk of exposing the public authority to impermissible pressure.

Supreme Court

Mr N appealed to the Supreme Court, and was supported in his appeal by Mrs N.  The CCG and the Official Solicitor, on behalf of MN, sought to uphold the decision of the Court of Appeal.

Outcome

In N v ACCG [2017] UKSC 22, the Supreme Court has now pronounced definitively upon what the Court of Protection should do where is a dispute between the providers or funders of health or social services for a person lacking the capacity to make the decision for himself as to what services should be provided to him either between the person’s family or, by analogy, by those acting on behalf of the person.

Lady Hale, giving the sole judgment of the Supreme Court, considered that the true issue was not the jurisdiction of the Court of Protection (as it had been put by both Eleanor King J and Sir James Munby P in the Court of Appeal), but rather the approach it should take in light of its limited powers.

The proper approach to the determination of the issue

As she had done in Aintree v James, Lady Hale took matters back to first principles, by reference to the legislative history of the MCA (and, indeed, its pre-history, including – in essence – a potted narrative of the development of the doctrine of necessity and its ultimate codification).   

For present purposes, the most important points to be drawn from that history are the following:

  • The jurisdiction of the Court of Protection is limited to decisions that a person is unable to take for himself. There is no such thing as a care order for adults and the jurisdiction is not to be equated with the jurisdiction of family courts under the Children Act 1989 or the wardship jurisdiction of the High Court (para 24). By reference to the wording of s.16 MCA 2005, unlike the Children Act 1989 the MCA 2005 does not contemplate the grant of “the full gamut of decision-making power, let alone parental responsibility, over an adult who lacks capacity” (para 27);
  • Lady Hale’s ‘respectful’ agreement (at para 26) with the observations of Sir James Munby P in the Court of Appeal that, unless the desired order clearly falls within the ambit of s.15 (i.e. a declaration as to capacity and/or lawfulness, which may have a narrower ambit than can be made in the High Court), orders are better framed in terms of relief under s.16 MCA 2005. As she noted, an order under s.16(2)(a) simply makes the decision on behalf of the person, with no need to declare that the decision made is in P’s best interests;
  • The fact that s.17 MCA 2005 – giving examples of the powers under s.16 as respects P’s personal welfare – did not extend to such matters as deciding that a named care home must accommodate P or that a person providing healthcare must provide a particular treatment for P was consistent with

(1) the original Law Commission report in 1995, which provided that the role of the court it
envisaged was to stand in the shoes of the person concerned, but that, if that person had no power under the community care legislation to demand the provision of particular services, then neither could the court on their behalf;

(2) the approach then adopted in the Government’s White Paper preceding the then-Mental Incapacity Bill; and

(3) the approach laid down by the Supreme Court itself in Aintree v James (paras 29-32)

(4)  Courts and people taking decisions on behalf of those who lack capacity to do so have to do so in their best interests, and, following s.4 MCA 2005, a conclusion as to what is in a person’s best interests “is a decision about what would be best for this particular individual, taking into account, so far as practicable, his individual characteristics, likes and dislikes, values and approach to life” (para 34).

How, then, should the court reconcile its duty to decide what is in the best interests of the person with the fact that it only had the power to take a decision that P himself could have taken?

As Lady Hale made clear (para 35) this meant that it had to choose between the available options.   As Lady Hale outlined (at para 37), service-providing powers and duties – including those under the Care Act 2014 (not relevant in MN’s case, but relevant in many others) – have their own principles and criteria which do not depend upon what is best for the service user, although such would no doubt be a relevant consideration.  She noted, in particular, that whilst decisions on health or social care services may engage the right to respect for private (or family) life under Article 8 ECHR, decisions about the allocation of limited resources may well be justified as necessary in the interests of the economic well-being.

In light of the analysis above, and the limited powers of the court, Lady Hale noted (at para 39) that where a case is brought to court:

What may often follow such an application will be a process of independent investigation, as also happened in this case, coupled with negotiation and sometimes mediation, in which modifications are made to the care plan and areas of dispute are narrowed, again as happened in this case. But 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.

Lady Hale outlined the extensive case management powers of the Court of Protection, noting (at para 41) that the court was therefore clearly entitled to take the view that no useful purpose would be served by holding a hearing to resolve a particular issue.   She continued:

In reaching such a decision, many factors might be relevant. In a case such as this, for example: the nature of the issues; their importance for MN; the cogency of the parents’ demands; the reasons why the CCG opposed those demands and their cogency; any relevant and indisputable fact in the history; the views of MN’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.

Lady Hale concluded that, on the facts of the case before Eleanor King J, consideration upon the lines set out immediately above would have led to the conclusion that it was unlikely that investigation would bring about further modifications or consensus and that it would have been disproportionate to devote any more of the court’s scarce resources to resolve matters. As she put it at para 44, this 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.

It is important to note, however, that, as Lady Hale emphasised at para 43:

Case management along these lines does not mean that a care provider or funder can pre-empt the court’s proceedings by refusing to contemplate changes to the care plan. 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.

5. Comment

This decision puts beyond doubt the limits of both the Court of Protection and, more broadly, what can be done in the name of best interests.

Lady Hale has made it clear, a decision as to what is in the person’s best interests is a choice between “available options”.

In practice, this means a constrained choice where a decision is being taken for P (a person, wholly or partially, reliant upon public funding to meet their care needs). 

When the Law Commission published their report last week on the amendments to the Mental Capacity Act 2005, I was surprised that they published the report without waiting for this important judgment and any people may regret this decision as the “hollowing out” of the concept of best interests, and perhaps this is why they didn’t wait as this case clearly does not fundamentally change the law around best interests maybe just reminds us of the importance of applying its principles, after applying public law principles and not the other way round.

The focus should be around ensuring P is appropriately involved in decisions taken for and about him or her, that P’s wishes and feelings are taken into consideration and P is supported by meaningful advocacy to ensure their voice is heard, and public bodies expect their decision making to be probed robustly, especially if they remove from the table options they deem they do not have a duty to put forward under public law, options which it would be clear P or their family would wish to be able to choose from.

This really supports our compliance under both Articles 12 and 19 of the United Nations Convention on the Rights of Persons with Disabilities.

Human Rights Issues

Both the Court of Protection and the Court of Appeal held that, exceptionally, the court is able to consider a claim that a public body is acting unlawfully in the steps that it is taking towards P by reference to the ECHR brought under Section 7 of the Human Rights Act 1998 citing the case of Re V (A Child) (2004) EWCA Civ 54.  The court noted that these cases must be clearly identified and properly pleaded. The Supreme Court did not comment upon whether the Court of Protection is able to hear claims brought under s.7 Human Rights Act 1998.

The Supreme Court was silent on this point and this could be taken as endorsement of this position. In addition to considering a case, the Court of Protection has jurisdiction to be able to make declarations and/or damages to reflect a public body’s past actions breach the ECHR.  

6. Link to the Law Commissions Report

It is being proposed in the Law Commission report filed two weeks ago, that for the vast majority of people who lack capacity to make decisions for themselves, authority for the decisions taken which interfere with Article 8 and Article 5 will be provided within the limits of s5 of the Mental Capacity Act 2005 as long as they have been taken in line with core principles, a robust assessment of incapacity and in line with best interest principles.  These decisions will follow an assessment of a person’s needs and a decision on eligibility against public law principles and in accordance with the Care Act 2014.  The outcome of the application of this thinking will be the production of a person’s care plan.

 Lady Hale observes at para 38 of her Judgment the limits of s.5 MCA 2005.

Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the deprivation of liberty safeguards in the 2005 Act) then it may be necessary to bring the case to court, as the authorities did in this case.

In a previous commentary I made reference to the recommendations of the Law Commission to the limit of the “general authority” provided by Section 5 and when that authority may be exceeded and cases ought to proceed to the Court of Protection.

From this case it appears that the Section 5 “general authority” would be significantly constrained in any case involving significant interference with the Article 8 rights of the individual, such as the case of MN.

Top tips - What does this judgment mean for professionals?

1. Ensure your public law decisions are fair, in good faith, rational, reasonable and within the powers you have under the relevant legislation

2.  Ensure your decisions do not breach laws made to protect fundamental rights and interests such as the Human Rights Act 1998, the Data Protection Act 1998, Equality Act 2010 and European Union law.

3. Ensure your decisions, if taken for people who lack capacity, are made in line with the Mental Capacity Act 2005 and relevant case law, and due consideration is given to when restrictions and restraints are  being used in the care or treatment of a person as to whether they amount to a deprivation of liberty and seek proper authorisation.

4. Consider carefully whether the decision can be properly made within the scope of s5 of the Mental Capacity Act 2005 and if there is doubt consider issuing an application to the Court of Protection for a decision, declaration and appropriate case management.

5. Ensure you always record not only your decision, but your “working out” - include all the relevant facts and your analysis which will then provide the evidence basis for your subsequent decision.  

Remember adherence to these Top 5 tips is the mark of a skilled and safe professional!  

Sue Inker
Bond Solon Subject Matter Expert and Adult Social Care Trainer

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