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The Supreme Court handed down judgment in N v ACCG & Ors [2017] UKSC 22 on 22 Mar 2017.
Background
The case before the Supreme Court concerned a disagreement that arose between N’s parents and the clinical commissioning group (CCG) that took responsibility for the funding of N’s care package when he turned 18, as he lacked the capacity to make relevant decisions. The dispute between N’s parents and ACCG was whether N could visit the family home and whether his mother could assist care home staff with his intimate care when she was visiting him. The issues before the Supreme Court were: (i) Whether a commissioning body can, by its decision not to fund a particular option for contact, remove the jurisdiction of the Court of Protection to make a best interests decision about contact; (ii) Whether the failure to conduct a best interests assessment and/or determine the facts breached N’s rights under the ECHR to a fair trial and a family life.
Court of Appeal Decision
On appeal, the previous decision was upheld and the Court of Appeal concluded that the Court of Protection was unable to compel the local authority to agree to a care plan which they were unwilling to implement. It was maintained that it was not the proper function of the Court of Protection to undertake factual inquiries into abstract issues that would not affect the outcome, and that it was also not appropriate to generate a platform for future proceedings in the Administrative Court. The Court also emphasised the separate functions of the court and a public authority and voiced concerns that local authorities should not be subject to such pressure.
The Court of Appeal also dismissed N’s claim that the Court of Protection did not have the jurisdiction to determine a human rights claim. It confirmed the analysis within the preceding judgment that the consideration of ECHR, art 8 rights were encompassed within an assessment under the Mental Capacity Act 2005, s 4.
Supreme Court Judgment
The Supreme Court unanimously dismissed the appeal. It said that the question was not strictly one of jurisdiction but of how the case should be handled in light of the limited powers of the court. There was no question as to whether the Court of Protection had jurisdiction to the make the orders that it did.
The Court of Protection has extensive case management powers which include, as the Court noted, the power to exclude any issue from consideration and to take any step for the purpose of managing the case and furthering the overriding objective to deal with the case justly. It was available to the court to decline to hold a hearing to resolve an issue if it saw no useful purpose on considering the relevant matters. The Supreme Court held that when considering this, it was likely to be concluded that the issues had been narrowed in this case, and the CCG had good reasons to reject the parents’ wishes as they could be seen as impracticable. The proceedings had already taken time and the Court submitted that it would be disproportionate to devote any more of the court’s scarce resources to resolving matters.
On the question of the best interests assessment, the Supreme Court held that the court was to take a decision that N himself would have taken, and thus could only choose between the options made available by the local authority. The Court confirmed the analysis of the previous judgments and reiterated that the Court of Protection did not have the power to require a local authority to deliver a care plan that they were unable or unwilling to implement.
Comment
This case established the limits on the power of the Court of Protection, and more specifically the restrictions on a best interests assessment. It highlighted that although a court has the power to assess what is in the best interests of an individual in terms of their care package, they can only substitute their opinion for that of the individual’s. Consequently, what is in the best interests of a person is restricted to the options made available by the local authority.
The judgment mentioned the scarce resources of the Court of Protection, which has been a prevalent issue following the ruling in Cheshire West. This decision arguably provides local authorities with a level of security and protection in what is a resource stretched environment. It emphasised that the court cannot in fact compel the authority to provide care or funding that they cannot, or will not provide. Nevertheless, the case does emphasise the importance of regular reviews in such situations to try and resolve disputes without the need for the court’s intervention. The Court encouraged the use of alternative dispute resolution procedures where appropriate.
However, for individuals it can be argued that the decision leaves people with few options. Without the court being able to consider whether the exclusion of a care option is within the best interests of an individual or not, there is little that they can do to challenge this. As reiterated in this case, judicial review has been labelled as the appropriate means to challenge relevant disputes however the practical reality of such an option for those wanting to bring proceedings is questionable.
The balance to be struck between the rights of the individual and the ability of the local authority to provide such care is difficult. To ensure that the individual’s rights are adequately protected, local authorities should ensure that they are central to the decision at each stage and where possible, measures should be taken to involve the individual even where disputes arise. Moreover, the decisions of local authorities should remain to be subject to rigorous review. Although the court cannot require local authorities’ to provide certain care, the importance of regular reviews and communication with all parties involved needs to be emphasised as this would help to reduce disputes and ultimately ensure the individual’s best interests remain paramount.
