Judge: Eleanor King J
Citation:  EWHC 3859 (COP)
Summary: At the final hearing of an application for declarations as to where a young man should live (and receive education and care), and for regulation of his contact with his parents and other family members, the relevant funding body, ACCG, made it clear that it was not prepared to fund contact between P and his family at the parents’ home. ACCG therefore submitted that this was not an option for the Court to consider when making best interests decisions; Counsel for the parent submitted that the Court should embark upon a trial in relation to home contact (and to the delivery of personal care by the man’s mother). The jurisdictional issue to which this gave rise – i.e. as to the precise scope of the Court of Protection’s powers – arose very late in the day, but it having been fully argued, Eleanor King J gave a full judgment upon the point.
Eleanor King J conducted an extensive review of the authorities, beginning with those decided under the inherent jurisdiction, and concluding with the dicta of Baroness Hale in Aintree v James  UKSC 67 to the effect that the CoP has no greater powers than P would have if they had full capacity. She noted that: “[a]n inevitable consequence of a person lacking capacity is that a public authority will often be providing services to that incapacitated person pursuant to various statutory duties. There is a danger of a blurring of the distinction as between the Court of Protection’s statutory duties in a private law context, (namely to consider the best interests of an incapacitated adult), with public law challenges in relation to the willingness, unwillingness, reasonableness or rationality of the services a public authority is willing or able to provide” (paragraph 34).
Rejecting the submission on behalf of the parents that the proper course was for the Court to consider where MN’s best interests lay in relation contact first, and only then to turn to consider the question of funding options, Eleanor King J noted that this could mean that the Court of Protection ”would potentially be using a best interests decision as a means of putting pressure upon the ACCG to allocate their resources in a particular way and in doing so would be going against the first principle now enshrined in Aintree that this Act is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further” (paragraph 52).
Eleanor King J noted that:
“57.There will undoubtedly be cases where courts wish to explore with providers the possibility of funding being made available for packages of care which may, for example, have been identified by independent social workers. In my judgment such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a “best interests” trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient’s best interest.
58. If the providers are unreasonable or irrational in reaching the decisions which have lead to the identification of the available options, that is a public law issue and that decision is susceptible to judicial review. Miss Bretherton makes the point that such an approach is unwieldy, but I return to the observations of Munby J in A v A, that the crucial distinction goes to the identity of the decision maker, if the decision which the judge has been asked to review consider or endorse is overturned as the case may be is that of the public authority exercising its statutory discretion, then the dispute properly falls to be considered by reference to public law principles.
59. Any delay or increased expense of litigation can be ameliorated to a considerable extent by an early identification of the issues and, if needs be, as in the case of A Local Authority v PB and P, the matter being listed before a Judge of the Division who also holds an Administrative Law ticket. In my judgment such a course not only reflects the law as it stands but avoids a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to “best interests” with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings. Such an approach undermines the first principle that the court can only make a decision that the incapacitated person can make from choices which are available or can, through discussion and negotiation, be made available.”
Eleanor King J also considered – separately – the submission that a failure to include consideration of all options (including hypothetical options) would mean that the Court had failed adequately to assess the proportionality of the proposals put forward and amount to a breach of the parties’ Conventions rights in particular Articles 8 and 6. Importantly, she held that it is open to a party to bring a challenge based upon the HRA within existing CoP proceedings, by virtue of the operation of s.7(1)(b) HRA 1998, but that such challenge is additional and must be separately pleaded to the general consideration of Article 8 rights that inevitably forms part of the Court’s analysis of best interests (applying K v LBX  EWCA Civ 79). She held that:
“71… If a human rights issue is properly raised and pleaded and appears to the court on the pleadings to have some credibility, the court may choose exceptionally to conduct a best interests analysis which includes a consideration of hypothetical options. This would be ordered so as to determine whether the assertion that there is a breach of a party’s Article 8 rights, consequent upon the provider failing to provide funding for their preferred option, has been made out.
72. I should be absolutely clear that it does not follow that in every case where a provider has declined to fund a package, or limited the available options, that there should thereafter routinely be an assessment of whether such an option would be in the best interests of the patient in order to ascertain whether there has been a breach of Article 8 rights. Far from it.
73. The law, as I have found it to be presently stated, is that the court may choose only between the available options in the same way as a person would if of full capacity. It may be, that in certain rare circumstances, a court may choose to hear a best interests argument, (as for example Bodey J did in Re SK where there was a possibility of a third party providing funds). Another example is in cases where there is a properly pleaded case showing a credible argument that a provider, in failing to agree to fund a package of care, has in doing so, breached or might breach the human rights of one or more of the parties to the proceedings.”
Drawing the threads together, Eleanor King J concluded (at paragraph 86) that:
“i) As restated by Baroness Hale in Aintree ‘the court has no greater powers than the patient would have if he were of full capacity’.
ii) Judicial review remains the proper vehicle through which to challenge unreasonable or irrational decisions made by ‘care providers’ and other public authorities.
iii) There may be rare cases where it appears to those representing a party that a public authority, in failing to agree to provide funding for or a particular form of care package, is acting in a way which is incompatible with Convention rights. In those circumstances, notwithstanding the fact that such an option is not available and before the court, the court may exceptionally, pursuant to a formal application made under s7(1)(b) HRA, conduct an assessment of the person’s best interests beyond the scope of the available options, in order to determine whether the public authority has acted in a way which is disproportionate and incompatible with a convention right.
iv) Protection of the Article 8 rights of the parties are otherwise protected by a consideration of them by the court as part of all the relevant circumstances when carrying out a section 4 MCA 2005 best interests assessment.”
Comment: This decision is of some importance, because it represents a reasoned judgment upon an issue which, as Counsel for the parents put it, “has been bubbling under the surface” for some time in CoP proceedings. We have had dicta from a number of judges suggesting that the pre-MCA 2005 approach (and that adopted in cases involving children) should be adopted, but this is the first fully contested decision to be reported. Whilst it included a minor mis-quotation from the decision in Re SK (cf paragraph 50 of ACCG and paragraph 10 of SK) we would respectfully suggest that it is entirely correct, both as regards the ‘conventional’ distinction between proceedings in the CoP and proceedings in the Administrative Court, and as regards the exceptional circumstances in which (as with care proceedings) a party can require the Court to go beyond a consideration of the options actually on the table.
We also note that, although we do not understand that the judgment of Charles J in YA (F) v A Local Authority  EWHC 2770 (COP) was cited to the Court, the decision of Eleanor King J is entirely consistent with this earlier decision in terms of the approach adopted to the ability of the Court of Protection (in appropriate cases) to consider HRA claims.
One practice note that arises from the judgment is as to the early identification and pleading out of the issues (in particular any claim based upon s.7(1)(b) HRA 1998). It was fortunate that the parties were in a position to deal with the jurisdictional issue when it crystallised at the outset of the final hearing; 3 days of Court time would otherwise potentially have been wasted. Practice Direction 13B (which drew upon the dicta of Charles J in A Local Authority v PB  EWHC 502 (COP to which Eleanor King referred in her judgment) requires that, ‘where appropriate,’ the preliminary documents for a directions or interim hearing before a High Court judge or for an hour or more, should include (inter alia) “(b) a particularised account of the issues in the case; (c) the legal propositions relied on, and in particular whether it is asserted that any issue is not governed by the Mental Capacity Act 2005; (d) any directions sought concerning the identification and determination of the facts that are agreed, the facts the court will be invited to find and the factors it will be invited to take into account based on such agreed facts or findings of facts; [and] (e) any directions sought concerning the alternatives the court will be invited to consider in determining what is in P’s best interests.” The difficult question, of course, is as to when the appropriate stage is for such matters to be set out, but is suggested that robust case management and judicial continuity can only assist in this.
Note: Permission to appeal this decision by MN’s parents is being sought. Michelle continuing to be instructed by the Second Applicant, this comment appears on behalf of Alex, Tor and Neil.