N v ACCG and others

The Court of Protection may make only a decision which the person lacking capacity could have made. It must select the option which serves that person’s best interests from the options actually available. It cannot compel a public authority to fund a service, or a care provider to deliver care which it is unwilling or unable to provide.

The court nevertheless controls its own proceedings. A provider cannot pre-empt consideration merely by refusing a proposed change. The court must decide whether further investigation or a hearing would serve a useful purpose, applying proportionate case management and considering the importance of the issue, the parties’ reasons, the person’s litigation friend’s views, cost, court time and the prospect of changing the care plan or achieving agreement.

MN was a profoundly disabled adult who lacked capacity to conduct proceedings or decide matters concerning his residence, care and family contact. He lived in a residential care home under arrangements commissioned by the local Clinical Commissioning Group. His parents sought visits to their home and the mother’s participation in his intimate care. The care home would not facilitate either proposal, and the Clinical Commissioning Group would not fund alternatives.

The Court of Protection declined to investigate the disputed facts and approved the available care and contact plan. The Court of Appeal dismissed the parents’ appeal in [2015] EWCA Civ 411. The father appealed to the Supreme Court, with the mother’s support. The central issue was how the Court of Protection should handle a best-interests dispute when the relevant funder or provider refuses to fund or provide the family’s preferred option.

1. Appeal dismissed unanimously. Lady Hale, with whom Lord Wilson, Lord Reed, Lord Carnwath and Lord Hughes agreed, held that the Court of Protection could make only a decision which MN could have made had he possessed capacity. Its powers were therefore confined to the options actually available. It could not order the Clinical Commissioning Group to fund the parents’ proposals or require the care provider to do what it was unwilling or unable to do.

2. The Mental Capacity Act 2005 requires decisions made for a person lacking capacity to serve that particular person’s best interests. Relevant matters include the person’s wishes, feelings, beliefs, values and other considerations which would probably have influenced a decision made with capacity. The person must be involved so far as reasonably practicable. Those requirements govern the choice between available options; they do not enlarge the court’s power over third parties.

3. The issue was not jurisdiction in the strict sense. The Court of Protection had jurisdiction to make the orders and declarations authorised by the Act. The real question was how it should manage proceedings given the limits of its substantive powers. Under the Court of Protection Rules, it could exclude an issue or determine that further investigation and a hearing would serve no useful purpose.

4. That case-management decision required a proportionate appraisal of such matters as the nature and importance of the issues, the cogency of the family’s proposals and the authority’s objections, relevant undisputed history, the litigation friend’s views, cost and court time, and the likelihood that investigation would change the care plan or produce agreement. Here the issues had narrowed, the proposals appeared impracticable, the Clinical Commissioning Group had good reasons for its position, the Official Solicitor supported it, and further proceedings were unlikely to alter the plan or achieve consensus.

5. A funder or provider cannot itself pre-empt proceedings by refusing to contemplate a change. Whether further consideration would serve a useful purpose remains a decision for the court. Public authorities must, however, exercise their statutory health and social-care functions according to their own legal criteria, including resource considerations. Challenges to those decisions ordinarily belong in judicial review or, where applicable, human-rights proceedings.

6. The Court of Protection was therefore entitled to discontinue the planned evidential hearing and approve the available care and contact arrangements. The orders below were upheld, although the Supreme Court reformulated the reasoning in terms of substantive power and case management rather than absence of jurisdiction.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously and the Court of Protection’s orders were upheld, although the reasoning was reformulated. [2017] UKSC 22.

2. Court of Appeal: Both parents’ appeal was dismissed. The court held that the Court of Protection should not investigate an abstract factual issue which could not affect the available outcome or be used as a platform for later administrative proceedings. [2015] EWCA Civ 411; [2016] Fam 87.

3. Court of Protection: Eleanor King J declined to conduct the planned evidential hearing, approved the available residence and contact plan, and made orders concerning MN’s residence, care and family contact. [2013] EWHC 3859 (COP); [2014] COPLR 11.