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| 4 minutes read

The Supreme Court on best interests and available options

The Supreme Court has today handed down its judgment in N v ACCG.  You can read a summary of the judgment and a commentary the facts on the Court of Protection Handbook site here.

In brief, the appeal was dismissed by the five justices.  Lady Hale gave the single judgment which was expressed in practical, down to earth terms.    She upheld the decisions of both the first instance judge and the Court of Appeal though for slightly different reasons.  Eleanor King J had declined to hear evidence as to MN’s best interests in relation to his contact arrangements, accepting an argument raised on the first day of the three day hearing that the Court of Protection had no jurisdiction to decide the issue, because the relevant statutory bodies were not willing to fund the arrangements sought by MN’s parents.  Lady Hale accepted that it was “to say the least, unfortunate” that the issue was raised so late in the day and acknowledged that MN’s parents  “could be forgiven for feeling a burning sense of injustice at what took place instead”.

Lady Hale restated the principle that the Court of Protection cannot make a decision that a person without capacity could not make, and traced this principle back to original recommendations of the Law Commission in 1989 and the passage of the MCA through parliament.   The Court of Protection’s  powers are different to those of the family courts under the Children Act 1989, which allows the court to award parental responsibility to the state.  There is no such thing as a care order for someone over the age of 18.  Declarations can be made under s16 or s15 as to a person’s lack of capacity and the lawfulness of any act done or to be done (and thus, the jurisdiction is narrower than that enjoyed by the High Court exercising its inherent jurisdiction.  The Court of Protection may also make decisions on behalf of P under s16, by making an order.  P is at the centre of such decisions which should be In other words, it 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. He must also be involved in the decision as far as reasonably practicable (section 4(4)). (§34)”

Lady Hale echoed the comments of the President in stating that decisions under s16 should be framed as orders rather than declarations.    The Court of Protection is however operating “on a different plane and on different principles from a public authority” deciding to exercise statutory powers, and which can take into account factors such as resources.

But this does not mean that the Court of Protection is in some way disqualified from making decisions simply because public law duties arise in the course of a case.  Where there is a dispute – as in this case- it may be necessary to bring the case to the court. 

She continued:

“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.”

The court’s extensive powers of case management allow it to take the view that “no useful purpose will be served by holding a hearing to resolve a particular issue”.  Factors to be considered would include “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.”

Importantly she added:

“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.”

Lady Hale found that Eleanor King J’s decision had not in fact been about jurisdiction but about case management and that she had been entitled to reach the view she had.

Comment: The finding that the “substance” of what the first instance judge was doing was case management is, it is suggested, very important.  There may be a world of difference between a court deciding not to hear evidence because it has been told it has no jurisdiction to make a particular decision (when plainly it does, because “best interests” decisions were made on behalf of MN at first instance) and a court concluding that to hear the evidence would serve no useful purpose having regard to its case management powers and obligations.  This judgment is helpful in re-positioning the Court in the driving seat with the power to frame the terms of the disputes before it.  The demarcation between public law disputes and decisions under the MCA has been reaffirmed.  Lady Hale did not disturb the finding of both the first instance judge and the Court of Appeal that the Court of Protection can hear applications under the HRA 1998.  Lastly the judgment approved the decision of the public bodies in this case to bring MN’s case to court, because of the dispute as to MN’s best interests, noting that where there are conflicting views between statutory bodies and family members, s5 may not be sufficient authority to allow statutory bodies to act without the approval of the court.

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


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