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The Court of Appeal and the limits of s21A

The Court of Appeal has upheld the appeal by the Director of Legal Aid Casework against the decision of Charles J that an application for the Court of Protection to determine whether life-sustaining treatment was in the best interests of Paul Briggs was properly made under s21A MCA 2005.

You can read the judgment here. The findings as to the scope of s21A will be of importance as will the comments about when an application to the court is required in relation to life-sustaining treatment.

Two applications were befor Charles J: one brought by the NHS Trust providing treatment for Mr Brigss in order to resolve whether such treatment was in his best interests; the other by Mrs Briggs, as her husband’s RPR, under s21A MCA. As the Court of Appeal noted Mrs Briggs made it clear from the start that the reason for using s21A as a vehicle was because this would allow her access to non-means tested legal aid. Without this she would have been unable to secure representation or marshall the evidence which she and Mr Briggs’ family and friends were able to provide and which was determinative in satisfying Charles J that Mr Briggs, if capacitous, would not have wanted treatment to continue.

The Court of Appeal noted the breadth of s21A which allows the court to determine “any question relating to

a) whether the relevant person meets one or more of the qualifying requirements;

(b) the period during which the standard authorisation is to be in force;

(c) the purpose for which the standard authorisation is given;

(d) the conditions subject to which the standard authorisation is given.”

However having regard to the context of s21A and the guides to its construction through the explanatory notes Lady Justice King held:

“88. In my judgment, regardless of whether the amendments to the Act went beyond that which was absolutely necessary in order to fill the Bournewood Gap, I am entirely satisfied that the provisions were not intended to, and do not, provide a duplicate route by which personal welfare decisions and in particular medical treatment decisions, can be made in circumstances where the deprivation of liberty itself is not the real or essential issue before the court.

89. In my judgment therefore, when considered against the structure of the Act together with the Code of Practice and Explanatory notes, Section 21A relates to decisions about the deprivation of liberty and not, as suggested by the judge, to the circumstances which lead up to the deprivation of liberty. Sch. 1A para.16 to my mind is clear that each of the conditions which have to be satisfied relate directly to whether it is necessary, proportionate and in the best interests of P to be detained.

90. It is important also to remember that ‘best interests’ is not a concept in the abstract. Anchored to the principle of ‘best interests’ found in section 1 MCA, is the fact that every decision made in relation to an incapacitated person under the MCA (whether deprived of their liberty or not) will be made through the prism of their best interests. The Act is decision specific – in the same way that the ‘functional test’ found at section 3 of the Act requires the determination of whether a person is unable to make a particular decision, (with the result that it is recognised that a person may have the capacity to make some decisions and not others). It follows that a consideration of what is in a person’s best interests in relation to any aspect of the Act must be considered in relation to the specific decision to be made.

91. Schedule A1 para. 16 sets out the best interests requirement where a person is, or is about to be, a detained resident. The three further conditions to be met, (as already identified) are that:

(3) . . . it is in the best interests of the relevant person for him to be detained

(4) . . . In order to prevent harm to the person, it is necessary for him to be a detained resident

(5) It is a proportionate response . . . for him to be a detained resident. 

(My emphasis)

In my judgment, para.16 is clearly geared to a particular decision namely whether it is in the best interests of P to be a detained resident. This decision specific application of the best interests principle dovetails with the DOLS Code of Practice which says that:

“….it is not the best interests assessor’s role to specify conditions that do not directly relate to the issue of deprivation of liberty”

And

“A deprivation of liberty authorisation – whether urgent or standard – relates solely to the issue of deprivation of liberty”

92. In my judgment, a question in relation to serious medical treatment is not fundamentally a question in relation to deprivation of liberty. The issue before the court, as was accepted by the judge, was whether P should or should not be given certain medical treatment. It may be that following the making of such a decision there will be implications in relation to P’s liberty as was recognised by the judge. For example: there may have to be a deprivation of liberty to prevent a woman from leaving the labour ward in circumstances where she lacks capacity and refuses a caesarean section which is clinically indicated and in her best interests. In my view, in such circumstances, the deprivation of liberty is secondary. The real question is whether it is in her best interests to have the surgery, whether or not it is in her best interests to be deprived of her liberty is then determined against the backdrop of the decision in relation to the proposed serious medical treatment. In my judgment that makes the appropriate application an application made under s.15 – s.17 MCA and not an application under s21A.”

King LJ rejected – perhaps unsurprisingly – the submission of the Legal Aid Agency that s21A should be constructed narrowly and that all that is required for the purpose of schedule A1 is for the assessors to be satisfied that there is a care plan and a needs assessment in place. She made the following important comment:

” 93. Having said that, in my judgment. Mr Nicholls has sought to place too narrow a scope on Sch. A1. There are many issues which relate to a deprivation of liberty which need appropriately to be considered by the assessor and which may be reflected in recommendations for conditions in the assessor’s report and which may even be determinative of whether a standard authorisation is made.

94.Where a dispute is referred to the court under s.21A, the issue is often in relation to P and the family’s wish for P to go home, set against the assessor’s view that it is in P’s best interests to be placed in a care home and consequently deprived of his or her liberty. Miss Richards has helpfully provided the court with a table of cases where applications have appropriately been made under s.21A; on closer examination, each of them has involved a dispute as to whether P should reside in some form of care home or return to either his home or to live with a family member in the community. Such cases are focused specifically on the issue as to whether P should be detained and are properly brought under s21A. Proper consideration of those cases by the assessor in compliance with the guidance in the DOLS Code, requires far more of an extensive consideration of the relevant circumstances than that which is suggested by Mr Nicholls, namely simply ensuring a care plan and needs assessment is in place without further consideration as to the content.

95.Contact, for example, is an issue capable of going to the heart of whether being detained is in a person’s best interests; it may be that in an ideal world P’s best interests would be served by a deprivation of liberty in the form of her living in a care home properly looked after, where the appropriate medication regime will be adhered to and P will have a proper balanced diet. Desirable as that may be, and such a regime may well provide the optimum care outcome for P, but it may also be the case that unless, regular contact can be facilitated to a particular family member, the distress and confusion caused to P would be such that it would be no longer in her best interests to be detained, and that what might amount to sub optimum physical care would ultimately be preferable to no, or insufficient contact. The weighing up of such options are part of the best interests assessment process in relation to which the professionals who are eligible to be assessors are peculiarly qualified to conduct.”

In Mr Briggs’ case therefore

“99……there was no live issue for determination under s.21A in relation to the deprivation of liberty, there was however a ‘life and death’ personal welfare issue to be decided under ss.15-17 of the Act.

 

King LJ went on the say that following Ferreira v HM Senior Coroner for Inner South London and Others [2017] EWCA Civ 31

108. The proper approach to a case where the central issue is medical treatment (serious or otherwise) following Ferreirais therefore as follows:

i) If the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in P’s best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 MCA

ii) If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn, then the matter should be referred to the court for a personal welfare determination under sections 15-17 MCA.

iii) Where, as a consequence of receiving life saving treatment, P is unable to leave hospital, that is not a deprivation of liberty which falls foul of Article 5(1). A standard authorisation is not therefore required and any application in relation to treatment will properly be made under s.16 MCA.

iv) If, as a consequence of ensuring that P receives the treatment that is in his or her best interests, P will become subjected to a deprivation of liberty of a type that falls within Article 5(1), then there must be authorisation for that deprivation of liberty:

a) If already in hospital or in care. under Schedule A1 (or S4A(5)): or

b) Pursuant to a court order under section 4A(3) MCA.

v) The Sch. A1 decision will be made pursuant to para. 16 on the basis that the proposed deprivation of liberty is in P’s best interests, necessary and proportionate; conditions of the type envisaged by the DOLS Code of Practice can be recommended if necessary.

“vi) If there is a disagreement as to whether there should be a standard authorisation, or in relation to the conditions attached to such an authorisation, then the matter can be brought to by way of an application under s.21A to determine any question relating to the authorisation and to make any appropriate order varying or terminating the authorisation. Clinical issues in relation to treatment will remain in the hands of the treating physicians.”

 

Earlier in her judgment King LJ had commented that PD 9E appears to be in conflict with the Code of Practice in requiring all cases concerning the withdrawal of artificial nutrition and hydration from a person in a persistent vegetative state or a minimally conscious state. The passage above is consistent with her comment that the Code should take precedence.

 

Leveson LJ added

“114. It is not for the court to identify how legal aid funds should be distributed but it may be appropriate to underline the difficulties that families such as the family in this case must face, addressing difficult issues at acutely traumatic times in their lives. If agreement between the authorities and the family is possible, litigation will not be necessary but, if there is disagreement, the resulting issues are likely to be complex both as to the facts and the law. Assuming that the merits of any particular proceedings can be demonstrated, consideration should be given to the public interest justification of adding financial pressures to the many others that the affected families face.”

There is much to consider in this judgment  It is not known whether many other medical treatment cases have been brought under s21A since Charles’ judgment. The prime reason for using the mechanism of s21A in Mr Briggs’ case was that it was the only way of ensuring that his family were able to participate fully in the application.

 

It is important that the Court’s recognition that the best interests assessment for DOLS may engage a range of issues is reflected both in DOLS decision-making and in legal aid funding decisions.

 

Once again this highlights the unsatisfactory result of the restrictions on non-means tested legal aid (Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013/480, Regulation 5). Some patients in hospital lacking capacity to make critical decisions will have access to non-means tested legal aid: others will not. Equally a person lacking capacity deprived of his liberty in a care home under DOLS will have access to non-means tested legal aid: but if the care home re-registers as a supported living placement delivering the same care package, the resident will need to satisfy a means test.   Parents who face care proceedings in relation to a child with learning disabilities would receive non-means tested legal aid: but would have to satisfy a means test to get legal aid to resist an application by the same statutory body to remove the same child once he or she is over 16 and lacks capacity for the purpose of the MCA. Amongst other matters this case illustrates the misery and potential injustice caused by such anomalies.

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.

MHLA Conference 30 June – full speaker line-up and topics

With a week to go, there are a few places still for this:

The keynote speech will be delivered by The Right Honourable Sir James Munby, President of the Family Division of the High Court of England and Wales. Other presenters include:

Professor Penny Cooper, Barrister – ‘Clear and Understandable? A definition of ‘vulnerable’ and a framework for obtaining the best quality evidence’

Jake Kraft, Legal Aid Agency – ‘Avoiding the pitfalls in challenges under Section 21A to DOLS authorisations’

Sophy Miles, Barrister – ‘Legal Update 2016-17’

Floyd Porter, Chief Assessor of the MC Panel – ‘The new MCA accreditation’

Alex Ruck Keene, Barrister, Writer and Educator – ‘When past and present wishes collide’

Tim Spencer-Lane, The Law Commission – ‘The Law Commission’s review of the DoLS’

We hope you will join us for a stimulating day of debate and to meet like-minded colleagues. The venue is the DoubleTree by Hilton Hotel, London Islington. Lunch and refreshments will be provided. The conference fee is £120 for MHLA members; £180 for non-members.

Full information and online registration here:

 

 

Transparency Update and changes to SMT approach

The Transparency Pilot approach and that previously provided for in Serious Medical Treatment cases has now been merged (in fact, the merging took place in March but the new order has only just been published).

The new order – to be used in all cases in the COP save for committal cases – can be found here, with an unofficial Word version here.

The Vice-President has published an explanatory note, which we reproduce below:

This note is a public document.

In the schedule to my judgment in V v ANL [2016] EWCOP 21 I set out a number of points relating to the Transparency Pilot (and so the order made under it restricting reporting – the Pilot Order) and the reporting restrictions orders made in serious medical cases to which Practice Directions 9E and 13A continued to apply (RROs).

Since then the ad hoc Committee on the COP Rules has considered the amalgamation of the two approaches and as a result has recommended that a further amendment should be made to the Transparency Pilot to achieve the result that it applies to all proceedings in the COP apart from applications for committal.  I am very grateful to those who gave up their time to do this work.

This recommendation has been accepted and means that further changes will be made to the standard Pilot Order.  The new version is attached.

It is hoped that the changes make it clearer by the use of headings.

The amended Pilot Order:

  1. is still directed to those who attend or find out what happened at an attended public COP hearing, and so is not directed to the world at large which the RROs were,
  2. still does not contain a schedule identifying those who cannot be identified,
  3. contains alternatives relating to its duration (which reflect the old Pilot Order and the RROs) for selection by the judge,
  4. now does contain a list of what is not restricted by the order, which is modelled on, but does not replicate, the list in the RROs, and
  5. provides that the injunction does not apply to a public hearing of, or the listing for hearing of, any application for committal.

A change for serious medical cases is that prior notice of the making of a Pilot Order will not be given to the media.  On that topic in the Schedule to my judgment in V v ANL I said:

“To my mind proper notification to the media of the existence of the proceedings and of the date of the public hearing of a case relating to serious medical treatment and the terms of any reporting restrictions order made when a public hearing is directed is what really matters.  And when that order follows a standard process referred to in a practice direction or rules it seems to me that:

  1. there are compelling reasons why the parties bound by the reporting restrictions order need not be notified of the application (see s. 12(2) of the HRA 1998), particularly if they are defined by reference to those who attend the public hearing (or get information from those that do), and
  2. this view is supported by the approach of the Court of Appeal in X v Dartford and Gravesend NHS Trust (Personal Injury Bar Association and another intervening) [2015] 1WLR 3647 in particular at paragraphs 25 to 35.

If those bound by the order  (and so the media) have such notification they can then attend the hearing knowing, in general terms, what the case is about and the terms of the reporting restrictions order and they can challenge that order then or at another time.”

The accepted recommendation reflects those comments and other points in that Schedule relating to notification and the old Pilot Order and RROs.

This change to the Transparency Pilot is part of an important exercise that is directed to finding the best approach to achieving the result that, on a case by case basis, the COP identifies and directs the correct balance between Articles 8 and 10 and thereby correctly promotes the powerful public interests they engage and reflect.

It is recognised that it is important that cases are appropriately described when they are listed to provide information to the public at large of what they are about and when and where they will be heard. Comment on how this should be and is being done is welcomed.  As is more general comment on how the public and the media can make themselves aware, or should be made aware, that certain types of case are due to be heard and a Pilot Order has been made in them.  Such comments should be directed to joan.goulbourn@justice.gsi.gov.uk as The Secretariat for The Court of Protection Ad Hoc Rules Committee or to me or the President of the COP.

The Hon Mr Justice Charles
Vice President of the Court of Protection

Date: March 2017

 

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.

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.