In the heart of Peterborough

Reflections on the decision of the Supreme Court

29 Mar 2017

In Re MN (An Adult) (Court of Protection: Jurisdiction) - Some Reflections on the decision of the Supreme Court

MN was born in 1993 and suffered from profound disabilities and he lacked capacity to make relevant decisions for himself. MN was made the subject of a care order when he was eight. Before MN's 18th birthday the court approved his move from his residential children's placement to an adult placement, RCH. A clinical commissioning group, ACCG, took over responsibility from the local authority for the funding of MN's placement at RCH when he reached 18. Proceedings in the Court of Protection were brought by the local authority in August 2011. MN's parents accepted, reluctantly, that MN should live at RCH, where they had regular contact with him.

The parents argued for two things : first, that they should be permitted to assist in providing intimate care for MN at RCH. Second, that there should be contact at their home. They argued that funding for each of these should be provided by ACCG.

The parents argued that the court should undertake a 'best interests' enquiry about the outcomes they sought for MN. The judge refused this and instead had wrongly acceded (so the parents argued) to an application by the ACC that a final order should be granted without any 'best interests' enquiry. The judge decided that in a welfare case the court was limited to choosing between available options and could not order ACCG to pay for other options. If the only option available was the one before the court, the court should not embark upon an exercise that was not going to yield the options sought by the parents. Had MN been of capacity the options available would have been the same and he would have had to decided whether to accept or reject them.

In the Court of Appeal, the President, Sir James Munby, rehearsed some long-standing principles with respect to the role of the courts where Parliament has delegated to local authorities powers with respect to the care of adults and children. The Supreme Court unanimously dismissed the appeal by the parents and approved the principles summarised by the President in the Court of Appeal.

The President provided the following guidance:-

i) the powers of the Court of Protection were similar to those in a family court. A family court does not have any power to obtain for a child resources which would not otherwise be available: Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7.

ii) the function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection cannot secure more for the adult just because they lack capacity; Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67, [2014] AC 591.

iii) the issue is about choosing from the available options what is in the child's best interests. The court cannot undertake a judicial review approach searching for options that do not exist or will not in the future: Holmes-Moorhouse v Richmond upon Thames London Borough Council; Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712.

iv) The family court and the Court of Protection can use persuasion in an attempt to bring about a change to a care plan but undue pressure must not be used (pressure can be distinguished from proper scrutiny of a care plan); Holmes-Moorhouse v Richmond upon Thames London Borough Council;

v) The Court of Protection has the power to direct the local authority to file evidence or to prepare and file evidence about other services even if doing so would be out with its care plan : see Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431.

vi) Court of Protection proceedings are not to be utilised for the exploration of best interests decisions which are hypothetical or with a view to setting up a platform for a judicial review application. If there is a credible human rights issue (which is properly raised and pleaded) a best interests enquiry may be appropriate to explore what impact the alleged breach has had on funding;

vii) The Court of Protection has jurisdiction to determine a human rights claim brought under section 7 of the Human Rights Act 1998. Such a claim must be clearly identified and properly pleaded.

viii) The Court of Protection's powers to make declarations under s.15 of the MCA 2005 are not as extensive as those under the inherent jurisdiction. It would be preferable for the court to make an order under s.16 unless the issue falls fairly and squarely within what s.15 contemplates. In my view, the court's anxiety over emphasising the limitations of s.15 was to dispel the view that the court had free reign to explore best interests decisions and make declarations;

ix) Practitioners should expect much more robust case-management with the possible introduction of rules similar to those in FPR PD12A as well proper compliance with COPR PD13B;

Carl Fender

29 March 2017

Carl Fender