N v ACCG and others

The Supreme Court held that the Court of Protection's powers under the Mental Capacity Act 2005 are limited to making the decision that P could have made if of full capacity and do not extend to compelling third‑party care providers or funders to supply or finance services which they are unwilling or unable to provide. Sections 15, 16 and 17 of the 2005 Act permit the court to decide where P should live and what contact P should have, but only from among the options actually available to P; the court cannot create enforceable funding or service provision options. The proper route to challenge an unreasonable decision by a public authority about funding or provision remains judicial review and, in rare cases, a section 7 Human Rights Act claim. The Court of Protection also has broad case‑management powers and may refuse to pursue a hearing where no useful purpose would be served.

Background and parties. MN is a profoundly disabled young man who lacked capacity to decide residence, care or contact arrangements. The local authority and the Clinical Commissioning Group (CCG) applied to the Court of Protection for orders as to residence, care and contact. The parents sought additional contact arrangements: visits to the family home and the mother assisting with intimate care. The care home and CCG refused to facilitate or to fund those proposals.

Procedural history. The case was heard in the Court of Protection by Eleanor King J ([2013] EWHC 3859 (COP)). She declined to proceed to a full factual hearing of the parents' proposals, holding that the Court of Protection could not order care providers or the CCG to provide or fund services which P could not himself compel if he had capacity; she made orders adopting the CCG's contact plan. Both parents appealed to the Court of Appeal ([2015] EWCA Civ 411; [2016] Fam 87), which upheld the judge. The father (with the mother's support) appealed to the Supreme Court.

Nature of application. The applicants sought orders regarding residence, care and contact for a person lacking capacity; in substance the dispute was whether the Court of Protection should determine and declare that particular contact and care arrangements were in MN's best interests when the care provider and the commissioning body refused to provide or fund them.

Issues framed.

• Whether the Court of Protection may make orders which require or oblige third‑party care providers or public funders (such as the CCG) to provide or to fund particular services or contact arrangements for a person who lacks capacity.
• The proper interplay between the Court of Protection's decision‑making powers under the Mental Capacity Act 2005 and public law remedies (judicial review) and human rights claims under the Human Rights Act 1998.
• How the Court of Protection should exercise its case‑management powers when further investigation would be unlikely to serve any useful purpose.

Court's reasoning. The court began from the statutory scheme of the 2005 Act and the principle that the court can only do for P what P could do for himself if of full capacity. Sections 15–17 and related statutory material allow the court to make decisions about P's personal welfare (including residence and contact) but do not enable it to create enforceable entitlements against third‑party care providers or funding bodies. The appropriate way to challenge a refusal by a public body to fund or to provide services is by judicial review (or, where relevant, a section 7 Human Rights Act claim). The Court of Protection has wide case‑management powers and may decline to continue a hearing if no useful purpose would be served; applying those principles, the Supreme Court concluded that Eleanor King J was entitled, by way of case‑management, to refuse a fact‑finding hearing when the parents' proposals were not realistically deliverable without the co‑operation or funding of others and further investigation was disproportionate.

Relief sought and outcome. The appeal was dismissed; the orders made by Eleanor King J were upheld.

The appeal is dismissed. The Court of Protection may only make decisions which P could have made if of full capacity and cannot compel third‑party care providers or commissioning bodies to provide or to fund services beyond the options available to P. Where a public authority refuses to provide or fund a service, judicial review (or, in rare cases, a section 7 Human Rights Act application) is the appropriate remedy. The Court of Protection has broad case‑management powers and may refuse to continue a hearing where no useful purpose would be served; on that basis Eleanor King J was entitled to discontinue the proposed fact‑finding hearing and to make the orders she did.

First instance and Court of Protection judgment: Eleanor King J, [2013] EWHC 3859 (COP), [2014] COPLR 11. Appeal to the Court of Appeal: [2015] EWCA Civ 411; [2016] Fam 87 (Munby P), which upheld the trial judge. Appeal to the Supreme Court: [2017] UKSC 22 (this judgment).