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Law Society Mental Welfare Accreditation Scheme goes live

The Law Society’s Mental Welfare Accreditation scheme has now launched, designed both to enable to produce a cohort of individuals able to act as Accredited Legal Representatives (i.e. able to represent P directly without a litigation friend when P is joined to Court of Protection proceedings) and also, more broadly, to enable the accreditation of legal practitioners with specific expertise in welfare matters before the Court of Protection.  For more details, see further here.

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.

Costs, HRA damages and the CoP

In Re TL [2017] EWCOP 1, Baker J has confirmed that, where claims for damages and/or declarations under the HRA 1998 are brought in the Court of Protection, the Civil Procedure Rules 1998, rather than the Court of Protection Costs Rules will apply (see paras 33 and 34).  In consequence, the normal costs rules – and risks – applying to civil litigation will apply.

That having been said, and in light of the recent spate of cases concerning HRA claims and care proceedings covered in the March 39 Essex Chambers Mental Capacity Report (to which can also be added Re SW & Re TW [2017] EWHC 450 (Fam)), it is increasingly obvious that it will only rarely be appropriate to bring such HRA cases within the four walls of the CoP.  Rather, separate County Court (or High Court proceedings) should be brought – or at least intimated, with settlement or other ADR being infinitely preferable.

Court of Protection (Amendment) Rules 2017

The Court of Protection (Amendment) Rules 2017 were laid before Parliament today (23 February).  They make provision for civil restraint orders and, in a new Part 24 – and, at last – provision for applications relating to the international jurisdiction of the Court of Protection.  They will come into force on 6 April 2017.  They are accompanied by a new PD in relation to civil restraint orders (PD23C) and in relation to Schedule 3 applications (PD24A).  Minor amendments are also made to other PDs, not least to cater for a merging of the approaches in the transparency pilot and in PD9E to serious medical treatment.  The new PDs and the amendments can be found in this document, and we will post the versions separately on our PD page when they appear on the Judiciary website.

HRA Time Limits Alert

COP practitioners need to be aware of the implications of a refusal by King J of an application to extend the one year time limit in AP v Tameside MBC [2017] EWHC 65 (QB).  You can read the judgment here.

The claim arose from a familiar pattern of events for COP practitioners: AP had learning disabilities as a result of Down’s syndrome; he lacked capacity to make decisions as to his residence and care as well as to litigate.  He was cared from by his mother until 2011 when he was removed by the local authority and placed in respite accommodation for two and a half years until he returned home in August 2013. In the meantime his mother had been acquitted of an offence of wilful neglect in relation to another family member.  The respite placement was not a registered care home so DOLS could not be used: nor was an application to the Court of Protection made at any time despite an IMCA suggesting this to the local authority in 2011.

AP was represented (via his family) by solicitors from 2012: a claim for damages under the HRA was issued in 2016.

The court had to decide whether it was ‘`equitable having regard to all the circumstances” to allow an extension under s7(5)(b) HRA 1998.

AP argued that although his lack of capacity did not displace the limitation, it should create a “rebuttable presumption” in favour of an extension. In addition to relying on some delays caused by –for example- problems in securing funding, the claimant argued that the defendant had been on notice of the potential claim at least since the release of the independent social worker’s report.

The local authority argued that the claimant had been represented by specialist solicitors since 2012 and could have brought the claim years ago.

The judge concluded:

  1. there is no predetermined list of relevant factors in relation to s 7(5) although proportionality will generally be given weight;
  2. lack of capacity does not “carve out” a rebuttable presumption, although it is a factor to be taken into consideration- here the claimant had family members and specialist solicitors looking after his interests, reducing the weight to be given to this factor;
  • the court’s assessment of the merits and value of the underlying claim is a relevant factor.

 

King J refused to grant the limitation because:

  1. the delay had been considerable
  2. the claimant had been consistently represented since 2011 firstly by the IMCA, then his family, and since 2012 by specialist solicitors. It was “inexplicable” that they had not taken steps to protect his position.
  3. there was a real risk of unfairness and prejudice to the local authority in allowing the claim to proceed – it would be a huge administrative burden
  4. the claimant would suffer prejudice if he could not pursue his claim but this did not equate to injustice.

 

This claim was brought in the QBD but the principles governing extension under s7 (5) HRA will also apply in cases where the claim is brought in the COP.  It is quite common for a COP practitioner to become aware of a convention violation which may have taken place some time before COP proceedings are brought:  for example P may have been placed in a care home in circumstances where the decision-making is very unclear; there may then be a period where P is de facto detained without an authorisation; once one is granted there may be sometime before a s21A challenge is initiated.  In cases where the  violation can be seen to have been brought to an end with the use of DOLS, then the one year time limit will begin to run from the date the violation ceased.  If at the expiry of the one year P was unrepresented because no challenge had been made then clearly this is a factor that would be taken into account (although the fact that an IMCA was instructed was relevant in AP’s case).  However a litigation friend for P cannot assume that either the COP or the civil courts will take a relaxed attitude to time limits.  Those acting for litigation friends should:

ask themselves at an early stage whether there is any reason to believe that P’s convention rights have been breached;

ensure they diarise the expiry date;

if this has passed, consider asking the COP to grant an extension for a limited period (assuming that it is anticipated that the claim will be brought in the COP), with case management directions;

if it is clear that for some reason it will not be possible to make the application in the COP in time, ask for an extension;

if the intention is to apply outside the COP in the QBD or county court, ensure that a claim is made as soon as possible.