MN (Adult)

The Court of Protection may decide only between care options that are available or reasonably likely to become available. It cannot compel a private provider or public authority to provide or fund another option.

The court may rigorously probe a public authority’s care plan, require evidence, encourage reconsideration and use persuasion. It must not exert pressure or undertake an abstract best-interests inquiry to support future public law proceedings. A challenge to a public authority’s exercise of statutory functions is governed by public law.

The Court of Protection may determine a claim under section 7 of the Human Rights Act 1998, but the claim must be clearly identified and properly pleaded. Reliance on Convention rights does not erase the distinction between public and private law.

MN was a profoundly disabled young adult who lacked capacity and lived in a residential placement funded by a clinical commissioning group. His parents accepted the placement reluctantly but sought contact at their home and greater participation by his mother in his intimate care. The care provider opposed the latter arrangement, while the commissioning group declined to fund the carers required for home contact.

Eleanor King J held in [2013] EWHC 3859 (COP) that home contact was not an available or reasonably foreseeable option. She therefore declined to conduct a best-interests assessment of that hypothetical possibility and approved the available contact programme.

Both parents appealed. The central issues were whether a commissioning decision could limit the options considered by the Court of Protection and whether declining a full best-interests inquiry infringed articles 6 or 8 of the European Convention on Human Rights.

1. Appeals dismissed. The judge correctly confined the best-interests assessment to available options. The Court of Protection acts for an adult lacking capacity by making decisions which the adult could make if capable. It has no greater power than that adult to obtain resources or facilities from an unwilling third party. Options reasonably expected to become available in the foreseeable future may also be considered.

2. The Court of Protection may explore a public authority’s care plan, demand information, ask searching questions, encourage negotiation and require reconsideration. It cannot compel the authority to implement another plan. Rigorous probing, persuasion and judicial encouragement are permissible; pressure is not. If an impasse remains, the court must decide between the options actually available, even if that requires choosing the lesser of two evils.

3. A best-interests inquiry should not determine an abstract question which cannot affect the proceedings. Nor should it create a platform for possible proceedings in the Administrative Court. Such an inquiry would confuse the individual welfare perspective of the Court of Protection with the wider statutory and resource-allocation responsibilities of a public authority. It could also expose the authority to impermissible pressure.

4. A decision about whether a public body will provide or fund services is not one which the incapacitated adult could make. Any challenge to that statutory decision must be determined according to public law principles. The use of best-interests language by the authority does not convert its decision into one for the Court of Protection.

5. The Court of Protection has jurisdiction to determine a human-rights claim under section 7 of the Human Rights Act 1998. Such a claim must be clearly identified and properly pleaded. Convention rights do not collapse the fundamental distinction between public and private law.

6. Obiter, the declaratory powers under section 15 of the Mental Capacity Act 2005 are precisely defined and probably are not enlarged by section 47(1). Section 15(1)(c) authorises declarations about lawfulness, not bare declarations of best interests. A declaration is non-coercive and cannot be enforced by committal. Relief should ordinarily be framed under section 16 where section 15 does not clearly apply.

1. Court of Appeal (Civil Division): The parents’ appeals were dismissed. The court upheld the judge’s restriction of the best-interests assessment to available or reasonably foreseeable options.
2. Court of Protection: Eleanor King J held in [2013] EWHC 3859 (COP) that home contact was not an available or reasonably foreseeable option, declined to assess it hypothetically, and approved the available contact programme as being in MN’s best interests.
3. Permission to appeal: Permission was refused by the trial judge and on paper, but granted on renewal in [2014] EWCA Civ 1176 .