Category: Case comments

Law Commission Deprivation of Liberty report – the Government responds

The Government published its response to the Law Commission’s Mental Capacity and Deprivation of Liberty report on 14 March.  The headline is that the Government “agree[s] in principle that the current DoLS system should be replaced as a matter of pressing urgency,” and that it will legislate in due course.  Before the introduction of any new system, the Government has said that it will “need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.”

In its detailed response, the Government has accepted, or accepted in principle, all of the recommendations except (1) the recommendation relating to a statutory codification of capacity law in relation to children; and (2) four areas which it has left for the independent Mental Health Act review to consider.

Deckchairs on the legal Titanic? The Re X saga continues

In Re KT & Ors [2018] EWCOP 1, Charles J has returned – again – to the vexed question of how Re X applications (now, strictly, COPDOL11 applications) can proceed where there is no-one can properly play the part of Rule 3A (now Rule 1.2(5)) representative.  Charles J considered four test cases of the 300 or so that have now been stayed in accordance with his decision in Re JM [2016] EWCOP 15, there being no family member or friend is available for appointment as P’s Rule 1.2(5) representative.

Background

In early 2017, the Government Legal Department had written to local authority applicants in stayed cases to indicate that (1) the most appropriate course of action was for the local authority to identify a professional advocate; but (2) where one was not available, the local authority should liaise to take forward the process of commissioning a Court of Protection General Visitor to complete a report under s.49 MCA 2005. The GLD letters indicated that Ministers had agreed to provide funding to HMCTS to enable greater use of visitors by the COP. On the basis of these letters, two applicant local authorities sought to lift stays in four cases, which were listed before Charles J as test cases.

Charles J, it is fair to say, was unimpressed by the GLD letters, noting that they were devoid both of detail as to extra funding, and also how and why it was now said that a professional advocate had or had always had been a practically available option in a significant number of cases. Following directions made in the test cases, the Secretary of State filed submissions which asserted that local authority applicants owed a duty under s.6 Human Rights Act 1998 “to facilitate the speedy resolution of the application by (for example) ensuring that a professional advocate is appointed to represent P’s interests so far as necessary“. It was asserted that this duty: “falls into the same category as the DOLS duties which were considered in Liverpool City Council,” the unsuccessful judicial review brought by local authorities to seek to compel greater funding to discharge their DOLS obligations. As Charles J noted that, this was a radical departure from the position that had previously been taken by the Secretary of State in JM, where it had been agreed that local authority and other applicants do not owe a statutory duty to provide representation for P in the COP.

Whose obligation to provide representation for P?

Charles J expressed the preliminary view that the Secretary of State’s argument as to the obligation of local authorities under the HRA was wrong, running counter to the decision on the obligations of a local authority in Re A and C [2010] EWHC 978 (in particular at paragraph 96) and its application in Staffordshire County Council v SRK and others [2016] EWCOP 27 and [2016] EWCA Civ 1317.  However, even if they did owe such a duty, Charles J held that this did not assist the Secretary of State because the central, statutory, obligation lay with the Secretary of State for Justice to ensure that the COP, as a public authority, acts lawfully and so can apply a Convention compliant and fair procedure.

Visitor as Convention-compliant procedure?

Charles J agreed with the agreed position of both the applicant local authorities and the Secretary of State that the appointment of a Visitor would provide a fair and Convention compliant procedure because it would provide the essence of P’s Article 5 procedural rights, which had been identified in Re NRA & Others [2015] EWCOP 59 as requiring an independent person to: (1) elicit P’s wishes and feelings and make them and the matters mentioned in s.4(6) MCA 2005 known to the Court without causing P any or any unnecessary distress; (2) critically examine from the perspective of P’s best interests, and with a detailed knowledge of P, the pros and cons of a care package, and whether it is the least restrictive available option; (3) keep the implementation of the care package under review and raise points relating to it and changes in P’s behaviour or health. Charles J set out draft directions which could be made in cases where a Visitor was proposed.  Charles J acknowledged that there were both advantages and disadvantages to the appointment of a Visitor over a family member or friend, the advantages being the independence and expertise of the visitor, the disadvantages being the absence of a more regular review on the ground by someone who knows P and wants to promote their best interests.

Having conducted a detailed review of the (depressing) evidence before him, Charles J did not consider that the offer to fund Visitors by the Secretary of State was likely to offer anything but a short-term or a very partial solution to the issue. However, he held that this should not stop it being used for so long as it was available in practice.

Order of preference

In light of the matters set out above, Charles J had to resolve an issue as to whether, where no family member/friend is available to as Rule 1.2(5) representative, the second choice should be a Visitor (the local authorities’ position) or a professional representative (the Secretary of State’s position). In reality, as he noted, the dispute was based upon the budgetary battle between local and central government. In the abstract, Charles J considered, the appointment of a professional who could act independently as a Rule 1.2(5) representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a Visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a Visitor.

However, given that there was no evidence that professional representatives were actually practically available in most cases, Charles J held that if he had to make a choice, he would choose a Visitor. He recorded the sensible acceptance by the Secretary of State that generally the COP can and should accept an assertion from an applicant authority that a professional Rule representative is not available for appointment at face value.

Joinder of the Crown/further stays

Charles J has no intention of letting the Government off the hook, noting at para 91 that:

In cases where a visitor is appointed (or some other available procedure is adopted to enable an application or review to proceed) there is no need to, or purpose for joining, or continuing the joinder of, the Crown. But, as soon as any such practically available process is no longer available I consider that, for the reasons given in JM and earlier in this judgment the COP should join the Crown to and stay such applications and reviews.

Way ahead

Charles J suggested that the Secretary of State, the Public Guardian and the COP (through the Senior Judge) try to agree a process by which the stays are lifted in the approximately 330 stayed cases on the same basis as in these cases. He indicated that in cases in which local authorities (or, presumably, other applicants) have not sought to lift the stay, an appropriate course would be for the Secretary of State to apply to lift the stay in a manner that ensures that a visitor will be available for appointment in each case. However, he left the ultimate decision as to how best to clear the backlog to the triumvirate set out above.

Comment

The decision in Cheshire West has caused huge resource implications. The Law Commission has estimated the cost of full compliance at £2.155 billion per year. One of the local authorities before the court, Wolverhampton, had brought 24 applications over the past 3 years, and estimated that that three times the present number should have been brought, the numbers being likely to increase with service users moving to supported living. The Law Commission had estimated that around 53,000 people are deprived of liberty outside hospitals and care homes, and calculated that this would cost local authorities and the NHS £609.5 million per year to authorise by obtaining welfare orders from the COP.   Only a very small fraction of these applications are being made, although between January and March 2017, there were 969 applications relating to deprivation of liberty, up 43% on the equivalent quarter in 2016 (678). Of these, 600 were Re X applications.

In the circumstances, it is hardly surprising that Charles J considered that funding to provide an additional 200 Visitor reports a year hardly scratched the surface of the problem. As he recognised, his analysis of the position represents, in essence, the re-arranging of deckchairs on the legal Titanic. LPS – and/or or a radical rethinking of the law relating to deprivation of liberty – cannot come soon enough.

Guest Post by Zena Soormally on the duties of ALRs

We’re very pleased to include this post by Simpson Millar’s Zena Soormally, which summarises the guidance from the Law Society on the role of ALRS.

“Having read the new Law Society Practice note on Accredited Legal Representatives (“ALRs”), I thought I’d summarise a little of what I now understand the role to entail and my thoughts for the views of those who are interested. Please note that you can only access the note if you are registered with the Law Society and, even when you do access it, it has the usual status of guidance from the Law Society, it is not binding:

  • If you act as ALR, P will be understood to be your client (notwithstanding that ALRs are appointed by the court so you won’t have your usual solicitor/client relationship)
  • If the court wishes to appoint you as an ALR (where you are accredited by the Law Society) the court needs your permission before you are so appointed – so there will be scope to work out your case load obligations at the time and funding issues (although there doesn’t appear to be any guidance about the ramifications, if any, if you refuse to take a case a number of times)
  • The ALR invitation can be made on courts own initiative or on application
  • The COP has to consider, as with all cases, at the start, whether an ALR should be appointed, or whether P should participate in some other way (Rule 3A) – generally that will be, in summary (1) ALR, (2) LF, (3) Rule 3A Rep, or some other direction
  • The Law Society Guidance suggests that the following cases are likely to require a litigation friend, not an ALR: where

o   expert evidence is needed – arguably quite a lot of cases will fall in to this category

o   the case is “complex” – although no definition or guidance is given to define what ‘complexity’ will look like

o   there are a wide range of issues to consider, and

o   the case involves 16-18 year olds who are a party

  • In other cases, a Rule 3A rep might fit the bill better.
  • In many cases, it’s possible that no representative of P at all will be needed, as is the case is non contentious – e.g. COP Property and Affairs cases
  • It is more likely that an ALR will be appointed if issues are relatively defined.
  • It may be that you will be appointed as ALR at first but then need a litigation friend as case becomes more complex or contentious. It will be up to the litigation friend whether they then instruct the ALR as solicitor going forward, although I can see benefits of that.
  • Once appointed as ALR, the usual processes follow as if you were a solicitor, as far as I can tell – e.g. see client, obtain and consider docs etc.
  • The COP’s list of ALRs will be updated monthly. It is up to the COP how it will allocate those cases and, as far as the guidance says, there is likely to be regional differences in approach, which will no doubt cause some issues for lawyers in practice while transition takes place to the new approach.
  • The guidance provides interesting guidance in relation to client care letters: P will be the ALR’s client but anyone acting as ALR will need to consider putting together an appropriate client care letter in line with the guidance and the SRA Code. If it is inappropriate to send a letter, ALRs will be expected to retain a copy on file with a note explaining why it wasn’t appropriate to send one.
  • ALR’s must adhere to SRA code of conduct, as would be expected.
  • ALR’s are not expected to send anyone else in their place to meet with P (which makes sense and must, in my view, be right, but which some senior solicitors may struggle with, if they routinely send out junior staff for client meetings, rather than attending in person).
  • ALRs will need to make sure,

o   as they already should , that they have regard to, and implement, Mr Justice Charles’ guidance on the Participation of P, and

o   even if you are unfamiliar with it now, that you have read the guidance re Rule 11 (7) (B) rules for MHT work, as there is overlap specifically mentioned in the guidance.

  • As with a litigation friend, the role of ALR is to put forward a case in P’s best interests, not always just what P wants, although you must always make P’s wishes and feelings clear. Whatever happens, if you are unsure what to do, the advice appears, sensibly, to be that you should make an application to the COP (on notice or not) under Rule 148A to seek guidance.
  • Solicitor ALR’s can conduct own advocacy in COP but you can also instruct Counsel if you wish – although, as always, they must have the right experience.
  • The duties to your ‘client’ section of the guidance, including the sections on confidentiality, disclosure and privilege, cause me some concern, given the practice of preparing notes of visits to P, where they lack capacity to conduct proceedings, and reporting everything said to the COP by way of witness statement: I am not sure, in practice, how the balance will be struck under the ALR role, where there is no client to seek instructions from on the issue of whether something should be withheld from the statement or not. In practice, it may result in further applications to the COP for guidance, until the case law has developed to provide that guidance.
  • Funding: this is still a pain as far as I can see but the updated information is helpful. Essentially, as I understand it, it works as if you are a litigation friend, save that you have to ask the LAA to exercise its discretion under Regulation 30 (5) to waive the need for a signature on the LAA forms. However, that doesn’t help the fact that you can only get legal aid if P is a party, wishes to be joined as a party and/or is contemplating proceedings. None of those will apply to a lot of the ALR cases, so, I imagine, that means that LAA funding will not be available unless P is, in practice, a party. That may, in effect, just mean that, until the funding issues are resolved, P will be routinely joined as a party, with an ALR. All the other usual LAA rules apply as do the usual rules with regards to private funding and/or seeking undertakings on costs from the relevant public body if legal aid isn’t available.
  • Non LAA practitioners can become ALRs but they cannot accept cases where P is, or may be, eligible for legal aid. The borderline eligibility cases and/or those where P isn’t eligible but will be in the near future (perhaps because of built up savings) will no doubt therefore, need to go to LAA practitioners only).
  • There will be some lag between being invited to act as ALR, and actually being able to accept, because of the work needed to establish LAA eligibility. You will not have funding to carry out that work, so we will be taking over the role, which the OS usually has to deal with, to investigate eligibility without funding being it place – that may, in some of these cases, require a number of letters and calls, which isn’t appealing, but isn’t always too onerous.
  • The guidance specifically reminds ALRs to be mindful of advising/taking forward any linked issues with regards to judicial review and/or damages claims BUT note that as ALR you have no magic status to take such a matter forward and, as in cases now, you would no doubt need to approach someone (perhaps the OS) to act as litigation friend in those other non COP cases if you see something that needs to be progressed. I imagine, if an ALR case became a case that required linked involvement from the OS as litigation friend, the OS would also see good reason to act as litigation friend in the ALR case.
  • Don’t forget to have regard to the case of Re RD when dealing with s21A cases, in the usual way.”

New PDs now published (and one that hasn’t been)

Accompanying the new Rules to come into effect on 1 December 2017 (assuming Parliamentary approval), a new suite of Practice Directions will also be brought into force.  A table is set out below, and the PDs can all be found here.

For the most part, the substance of the Practice Directions is the same as that contained in the existing ones, although recast to reflect the renumbering in the Rules.  Important points to note are:

1. Practice Direction 3B, consolidating into the practice of the Court the case management pilot approach to case pathways

2. Practice Direction 4C, consolidating the transparency pilot into the practice of the Court

3.  Practice Direction 17C, consolidating the s.17 pilot approach

4.  Practice Direction 24C, providing for transition arrangements in the following terms

Applications received after commencement

2. If an application under the Previous Rules or the pilot Practice Directions is received at the court on or after commencement [i.e. 1 December], it will be returned.

3. However, an application made under the Rules using the version of the relevant form which was current immediately before commencement will be accepted until close of business on 12 January 2018, or such later date as the Senior Judge may direct.

Applications received before commencement

4. The general presumption will be that any step in proceedings which were started (in accordance with rule 62 of the Previous Rules) before commencement which is to be taken on or after commencement is to be taken under the Rules.

(Rule 62 of the Previous Rules provides that proceedings are started when the court issues an application form at the request of the applicant.)

5. However, the general presumption is subject to any directions given by the court, which may at any time direct how the Rules are to apply to the proceedings.

6. Any step already taken in the proceedings before commencement in accordance with the Previous Rules or the pilot Practice Directions will remain valid on or after commencement.

Orders made before commencement

7. Where a court order has been made before commencement under the Previous Rules or the pilot Practice Directions, the order must still be complied with on or after commencement.

Finally, it should be noted that Practice Direction 9E, concerning serious medical treatment, is not carried over into these new provisions, so that it will fall away on 1 December 2017. At time of writing no replacement has been proposed.

 
Practice Direction 1A – Participation of P
Practice Direction 2A – Levels of judiciary
Practice Direction 2B – Authorised court officers
Practice Direction 2C – Application of the Civil Procedure Rules 1998 and the Family Procedure Rules 2010
Practice Direction 3A – Court’s jurisdiction to be exercised by certain judges
Practice Direction 3B – Case pathways
Practice Direction 4A – Hearings (including reporting restrictions)
Practice Direction 4B – Court bundles
Practice Direction 4C – Transparency
Practice Direction 5A – Court documents
Practice Direction 5B – Statements of truth
Practice Direction 6A – Service of documents
Practice Direction 6B – Service out of the jurisdiction
Practice Direction 7A – Notifying P
Practice Direction 8A – Permission
Practice Direction 9A – The application form
Practice Direction 9B – Notification of other persons that an application form has been issued
Practice Direction 9C – Responding to an application
Practice Direction 9D – Applications by currently appointed deputies, attorneys and donees in relation to P’s property and affairs
Practice Direction 9E – Applications relating to statutory wills, codicils, settlements and other dealings with P’s property
Practice Direction 9F – Applications to appoint or discharge a trustee
Practice Direction 9G – Applications relating to the registration of enduring powers of attorney
Practice Direction 10A – Applications within proceedings
Practice Direction 10B – Urgent and interim applications
Practice Direction 11A – Deprivation of liberty applications
Practice Direction 12A – Human Rights Act 1998
Practice Direction 13A – Procedure for disputing the court’s jurisdiction
Practice Direction 14A – Written evidence
Practice Direction 14B – Depositions
Practice Direction 14C – Fees for examiners of the court
Practice Direction 14D – Witness summons
Practice Direction 14E – Section 49 reports
Practice Direction 15A – Expert evidence
Practice Direction 17A – Litigation friend
Practice Direction 17B – Rule 1.2 representatives
Practice Direction 18A – Change of solicitor
Practice Direction 19A – Costs
Practice Direction 19B – Fixed costs in the Court of Protection
Practice Direction 20A – Appeals
Practice Direction 20B – Allocation of appeals
Practice Direction 21A – Contempt of court
Practice Direction 22A – Civil restraint orders
Practice Direction 23A – International protection of adults
Practice Direction 24A – Request for directions where notice of objection prevents Public Guardian from registering enduring power of attorney
Practice Direction 24B – Where P ceases to lack capacity or dies
Practice Direction 24C – Transitional provisions

Court of Protection Rules 2017

The Court of Protection Rules 2017 have been laid before Parliament, to come into force on 1 December.  These recast all of the Rules into the same format as the Civil Procedure and Family Procedure Rules. The new-look Court of Protection Rules will also incorporate those rules relating to case management which have, since September 2016, been implemented by way of the Case Management Pilot.  Accompanying – renumbered – Practice Directions (not yet published) will also cement into the practice of the Court the Transparency Pilot and the Section 49 Report Pilot.

LAG will shortly be publishing a revised second edition of the CoP Handbook and supplement with the new Rules and an introductory text outlining key changes since the publication of the second edition.

ALRs Are Go!

Congratulations to the first cohort of accredited legal representatives (ALRs) who have been approved by the Law Society.   You can find details about the Law Society’s Mental Capacity (Welfare) Accreditation Scheme here.

Those who have been awarded the status of ALR can now be appointed directly by the Court of Protection under Rule 3A.  Rule 3A (2) (b) allows the Court to direct that:

“P’s participation should be secured by the appointment of an accredited legal representative to represent P in the proceedings and to discharge such other functions as the court may direct”.

Rule 3 A makes it clear that the court has to give thought in every case to how P should take part in the case. It gives the court a menu of options of which the ALR is one. The factors the court should consider when deciding which of the options to select include:

“(a)the nature and extent of the information before the court;

(b)the issues raised in the case;

(c)whether a matter is contentious; and

(d)whether P has been notified in accordance with the provisions of Part 7 and what, if anything, P has said or done in response to such notification.”

Practice Direction 2A provides some further guidance at paragraphs 9-10:

  1. An accredited legal representative is defined in Rule 6. When such representatives exist one can be appointed whether or not P is joined as a party and this may be of assistance if urgent orders are needed, particularly if they are likely to have an impact on the final orders (e.g. an urgent order relating to residence).
  1. When P lacks capacity to conduct the proceedings and is made a party an accredited legal representative is not intended as a substitute for a litigation friend, but as an alternative in a suitable case (or in the early stages of the case).

No doubt caselaw will develop as to the proper use of ALRs.  So far we are aware of two references to their use in reported cases: HSE v PD [2015] EWCOP 48 (at [35]) and Re JM [2016] EWCOP 15 (at [30]).  In both cases, the court was concerned with the potential use of ALRs in cases where P has not been joined as a party.

However the appointment of an ALR is also as we have seen a possible alternative to a litigation friend in an appropriate case.  There seems no reason why an ALR should not be proactive in, for example, a Section 21A application where a solicitor who is a member of the ALR scheme has been approached either by P or an RPR.   In such a case the solicitor  may consider filing a witness statement confirming their accreditation, describing their interaction with P and explaining why this could be a suitable case for P to participate through the appointment of an ALR rather than via a litigation friend.  Our precedent for a first directions order in a section 21A includes provision for the appointment of an ALR.

 

The Court of Protection gets electronic seals

In a step which will gladden the heart of all those who have had to include “This order takes effect notwithstanding the fact that it is not yet sealed” in their orders from the Court of Protection, the Court of Protection will, from 21 July, be endorsing all non-financial orders with an electronic seal.  For more details, see the letter from HMCTS here.

Damages for false imprisonment: an example from immigration detention

Court of Protection practitioners may be interested in the successful challenge by Godwin Chaparadza to actions by the SSHD including, materially for our purposes although only one aspect of his successful claim, much of which is outside the scope of this post, challenges to the lawfulness of his detention between 11 April 2014 and 20 June 2014.

Mr Chaparadza had entered the UK as a student in 2004 and applied for his leave to be varied outside the immigration rules in 2011.  This had the effect of extending his leave to remain pending the decision on that application and any appeal.  The Home Secretary refused the application but did not notify Mr Chaparadza.  When in 2013 he was arrested for driving without insurance and obstruction, he was treated as an overstayer; he applied for asylum and was rejected and after he exhausted his rights to appeal he was detained while reporting in April 2014.   The Home Secretary refused to treat his further submissions as a fresh claim and he sought judicial review of, amongst other matters, the failure to comply with the notice requirement of the 2011 decision and the lawfulness of his detention.

In (very brief) summary the court found that the failure to notify Mr Chaparadza of the refusal of his application in 2011 meant that the refusal itself was of no effect: this triggered the extension of his leave and therefore there was no basis to detain him in April 2014.   The detention was, therefore, unlawful.  The Home Secretary argued that this was a technical error: the judge disagreed.  Reviewing the scope of damages for unlawful detention he awarded Mr Chaparadza £3,500 for the first 3 days on the basis of what he accepted was the shock of being detained and £7,000 for the remainder of the two month period, on the basis that Mr Chaparadza suffered no lasting harm.

In many cases where unlawful detention of P comes to light it will not be possible to demonstrate the tort of false imprisonment which involves is “the unlawful imposition of constraint on another’s freedom of movement from a particular place” (Collins v Wilcock [1984] 1 W.L.R. 1172 at 1178.)  However for those cases where this can be shown there is much to learn from the awards of damages in other jurisdictions.

Best interests, available options, and case management before the Court of Protection – the Supreme Court pronounces

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 as to what services should be provided to him either between the person’s family or, by analogy, by those acting on behalf of the person.

The facts

The appeal arose from the decision taken in 2013 in relation to a young man, MN, with profound disabilities who lacked capacity to make decisions about his care. He was made the subject of a care order when he was 8 years old and placed in residential accommodation. On turning 18, he was moved to an adult residential placement and the clinical commissioning group took over funding for his placement, the local authority remaining involved in the proceedings. MN’s parents accepted that he should live at the placement for the time being, but wished to assist in providing intimate care to MN at the placement, and to have contact with MN at their home.  The CCG did not agree that intimate care should be provided, and was not willing to provide the necessary funding for additional carers to facilitate home contact. At first instance, MN’s parents contended that the court should nevertheless determine MN’s best interests in respect of both matters. The local authority and the CCG submitted that the court was only able to choose between available options.

At first instance, Eleanor King J held that the court should not embark upon a best interests analysis of hypothetical possibilities in relation to home contact and that it would be only in exceptional cases that an argument founded on the Human Rights Act 1998 would require the court to consider options that were not available. Both parents appealed to the Court of Appeal, which upheld Eleanor King’s judgment. Mr N appealed to the Supreme Court, and was supported in his appeal by Mrs N.  The CCG and the Official Solicitor, on behalf of MN, sought to uphold the decision of the Court of Appeal.

The issue

Lady Hale, giving the sole judgment of the Supreme Court, considered that the true issue was not the jurisdiction of the Court of Protection (as it had been put by both Eleanor King J and Sir James Munby P in the Court of Appeal), but rather the approach it should take in light of its limited powers.

The proper approach to the determination of the issue

As she had done in Aintree v James, Lady Hale took matters back to first principles, by reference to the legislative history of the MCA (and, indeed, its pre-history, including – in essence – a potted narrative of the development of the doctrine of necessity and its ultimate codification).   She is, of course, uniquely placed to do so, given her role at the Law Commission in the 1990s in the formulation of what ultimately became the MCA 2005.   For present purposes, the most important points to be drawn from that history are the following:

1. The jurisdiction of the Court of Protection is limited to decisions that a person is unable to take for himself. There is no such thing as a care order for adults and the jurisdiction is not to be equated with the jurisdiction of family courts under the Children Act 1989 or the wardship jurisdiction of the High Court (para 24). By reference to the wording of s.16 MCA 2005, unlike the Children Act 1989 the MCA 2005 does not contemplate the grant of “the full gamut of decision-making power, let alone parental responsibility, over an adult who lacks capacity” (para 27);

2. Lady Hale’s ‘respectful’ agreement (at para 26) with the observations of Sir James Munby P in the Court of Appeal that, unless the desired order clearly falls within the ambit of s.15 (i.e. a declaration as to capacity and/or lawfulness, which may have a narrower ambit than can be made in the High Court), orders are better framed in terms of relief under s.16 MCA 2005. As she noted, an order under s.16(2)(a) simply makes the decision on behalf of the person, with no need to declare that the decision made is in P’s best interests;

3. The fact that s.17 MCA 2005 – giving examples of the powers under s.16 as respects P’s personal welfare – did not extend to such matters as deciding that a named care home must accommodate P or that a person providing healthcare must provide a particular treatment for P was consistent with (1) the original Law Commission report in 1995, which provided that the role of the court it envisaged was to stand in the shoes of the person concerned, but that, if that person had no power under the community care legislation to demand the provision of particular services, then neither could the court on their behalf; (2) the approach then adopted in the Government’s White Paper preceding the then-Mental Incapacity Bill; and (3) the approach laid down by the Supreme Court itself in Aintree v James (paras 29-32); and

4. Courts and people taking decisions on behalf of those who lack capacity to do so have to do so in their best interests, and, following s.4 MCA 2005, a conclusion as to what is in a person’s best interests “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” (para 34).

How, then, should the court reconcile its duty to decide what is in the best interests of the person with the fact that it only had the power to take a decision that P himself could have taken? As Lady Hale made clear (para 35) this meant that it had to choose between the available options, and its powers were (in this respect) similar to the family court’s powers in relation to children, as the House of Lords had previously explained in Holmes-Moorhouse v Richmond upon Thames Borough Council [2009] UKHL 7.   As Lady Hale outlined (at para 37), service-providing powers and duties – including those under the Care Act 2014 (not relevant in MN’s case, but relevant in many others) – have their own principles and criteria which do not depend upon what is best for the service user, although such would no doubt be a relevant consideration.  She noted, in particular, that whilst decisions on health or social care services may engage the right to respect for private (or family) life under Article 8 ECHR, decisions about the allocation of limited resources may well be justified as necessary in the interests of the economic well-being.

In light of the analysis above, and the limited powers of the court, Lady Hale noted (at para 39) that where a case is brought to court:

“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.”

Lady Hale outlined the extensive case management powers of the Court of Protection, noting (at para 41) that the court was therefore clearly entitled to take the view that no useful purpose would be served by holding a hearing to resolve a particular issue.   She continued:

“In reaching such a decision, many factors might be relevant. In a case such as this, for example: the nature of the issues; their importance for MN; the cogency of the parents’ demands; the reasons why the CCG opposed those demands and their cogency; any relevant and indisputable fact in the history; the views of MN’s litigation friend; the consequence of further investigation in terms of costs and court time; 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.”

Lady Hale concluded that, on the facts of the case before Eleanor King J, consideration upon the lines set out immediately above would have led to the conclusion that it was unlikely that investigation would bring about further modifications or consensus and that it would have been disproportionate to devote any more of the court’s scarce resources to resolve matters. As she put it at para 44, this was “a case in which the court did not have power to order the CCG to fund what the parents wanted. Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do. In those circumstances, the court was entitled to conclude that, in the exercise of its case management powers, no useful purpose would be served by continuing the hearing.” Lady Hale accepted that Eleanor King J had not put matters in quite those terms, but that was the substance of what she was doing and she was entitled in the circumstances to do so, such that the appeal fell to be dismissed.

It is important to note, however, that, as Lady Hale emphasised at para 43:

“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.”

Comment

This decision put beyond doubt the limits of both the Court of Protection and, more broadly, what can be done in the name of best interests. As Lady Hale has made so starkly clear, a decision as to what is in the person’s best interests is a choice between available options.  This means in practice, and all too, often a constrained choice where a person is wholly or partially reliant upon public funding to meet their care needs.  However, Lady Hale made clear that the approach that she was setting out was one that had always been intended from the very earliest work of the Law Commission.

Many people may regret this decision as the “hollowing out” of the concept of best interests, as Beverley Clough memorably put it in a post prior to the hearing. Further, some may contend that the result is inconsistent with the CRPD, which had a cameo role in the hearing.  However, for our part, we would suggest that our energies should be devoted more to ensuring that those mechanisms which exist to facilitate the involvement of those with impaired capacity in service provision decisions made for them under the relevant legislation (for instance advocacy under the Care Act) are made meaningful.  This is an area where real supports are required for the exercise of legal capacity under Article 12 CRPD (and also to make real the right to independent living under Article 19).

As regards the role of the Court of Protection, it is now clear beyond peradventure that the court should be in the driving seat as regards the management of cases that come before it, and we hope also that this judgment fortifies the court in taking the robust case management steps set down in the Case Management Pilot. We will certainly not be changing our advice that any person, and in particular any public body, appearing before the court can expect to have their decision-making probed robustly, especially where the consequences of those decisions are such as to remove from the table options which it is clear P would wish to be able to choose.

The Supreme Court did not comment upon whether the Court of Protection is able to hear claims brought under s.7 Human Rights Act 1998; both Eleanor King J and the Court of Appeal had held that, exceptionally, the court is able to consider a claim that a public body is acting unlawfully in the steps that it is taking towards P by reference to the ECHR, and we suggest that the Supreme Court’s silence on this point should be taken as endorsement of this position. We note that this is different to the question of whether the Court of Protection should be able to make declarations and/or damages to reflect a public body’s past actions breach the ECHR – there is no doubt that the court has the jurisdiction to do this, but, as is becoming increasingly clear the approach of the LAA, in particular, would seem to suggest that the much better course of action will normally be to bring separate proceedings in the county or High Courts.

We note, finally, Lady Hale’s observations at para 38 as to the limits of s.5 MCA 2005. It is no little interest in light of the rumbling issue Alex has discussed elsewhere as to when judicial sanction is required before steps can be taken by public authorities that Lady Hale clearly takes an expansive view of s.5.

“Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the deprivation of liberty safeguards in the 2005 Act) then it may be necessary to bring the case to court, as the authorities did in this case.”

If the Law Commission recommendations are taken forward, then this “general authority” (a phrase which harks very much back to the wording of the original 1995 report) would be significantly constrained in any case involving significant interference with the Article 8 rights of the individual. For our part, though, we consider that the issues at the heart of MN’s case would always require resolution by the court – albeit we would sincerely hope at very much greater speed.

This post was written by Alex Ruck Keene, Sophy Miles and Neil Allen, respectively junior counsel for the Official Solicitor, Mrs N and Mr N before the Supreme Court.