Judge: Nicholas Paines QC
Citation:  EWHC 3595 (Admin)
Summary: This community care judicial review is of considerable importance for the very clear statement it contains as to the interaction between the MCA 2005 and public law.
An elderly lady suffered from a number of physical and mental impediments which, together with her age, put her in need of care. Viridian Housing, the charity which owned the premises, reorganised the arrangements for the provision of care to residents of the building in which the woman lived. The woman and her niece were anxious about the effect of the reorganisation upon the woman’s continued occupation of her flat in the building. Her niece as her litigation friend brought a claim for judicial review.
The Claimant sought declarations that in transferring responsibility for her care to another organisation Viridian were in breach of a compromise agreement made in earlier litigation and had infringed Article 8 EHCR. She also sought a declaration that Wandsworth Borough Council had acted unlawfully in its management of the transfer of her care, in that it had failed to ensure that care was provided to her in a way that meets her assessed needs and takes into account her best interests.
The claim failed. However, for our purposes, the case is of importance because of the emphasis placed at the hearing upon the contention that the Council had failed to act in the Claimant’s best interests contrary to s.4 MCA 2005. The Claimant contended that the Council was under duties, both as part of the discharge of their duties under the National Assistance Act and pursuant to binding guidance issued under the Mental Capacity Act 2005, to meet her community care needs and to take into account her best interests as a mentally incapacitated person. Specifically, the contention was advanced (paragraph 91) that the Council acted unlawfully in not taking the Claimant’s best interests into account; faced with a report from an ISW saying that accommodation in a residential unit of one was consistent with her best interests, the Council ought to have taken a decision according to where her best interests lay. The Council disputed the suggestion that the Claimant’s best interests were not regarded as a material consideration, but submitted that they were not the yardstick by which it fell to the Council to take decisions about her.
The Claimant contended that the MCA was binding upon the local authority in the exercise of its social services functions by virtue of the operation of s.7(1) Local Authority Social Services Act 1970, which in turn required local authorities to have regard to the SoS’s guidance “Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care.” This guidance contains reference to the MCA and to the five principles contained in s.1. The Claimant also relied upon the decision of Ouseley J in R (W) v Croydon BC  EWHC 696 (Admin), in which a decision was quashed on the basis that there had been inadequate consultation, in circumstances where (the service user lacking capacity), the MCA 2005 was said to have been of “particular importance.”
Having set out the rival arguments, Nicholas Paines QC concluded that there had been no unlawfulness in the approach taken by the Council, primarily because he could identify no basis for saying that the Council were under a legal duty, enforceable by way of judicial review, to make arrangements under s.26 NAA 1948 for the Claimant to receive accommodation and care in a residential unit of one person at a specific location. He then addressed the question of the MCA 2005 thus:
“99. As regards the Mental Capacity Act 2005 and the Guidance, I have to decide whether the Council made a legal error in failing to decide what arrangements should be made for Miss Chatting by reference to the question of what was in her best interests. I agree with Ms Laing that they did not err in law in this regard. Plainly they would have erred in law if they had regarded Miss Chatting’s best interests as an irrelevance, because they would have been in breach of their duty under section 21(2) of the 1948 Act to have regard for her welfare. But the fact that Miss Chatting is mentally incapacitated does not import the test of ‘what is in her best interests?’ as the yardstick by which all care decisions are to be made.
100. Section 1(5) of the Act applies to ‘an act done, or decision made … for or on behalf of a person who lacks capacity’. Its decision-making criteria and procedures are designed to be a substitute for the lack of independent capacity of the person to act or take decisions for him or herself. They come into play in circumstances where a person with capacity would take, or participate in the taking of, a decision. In deciding not to press for the registration of Miss Chatting’s flat as a residential home for one person and in deciding (as they appear to have done) to agree to a novation of their section 26 arrangements for Miss Chatting so as to substitute Gold Care for Viridian, Wandsworth Borough Council were taking decisions that fell to them to take, with due regard for her welfare. They could rationally conclude that the decisions were compatible with her welfare. They did not as a matter of law require Miss Chatting’s assent to these decisions; no decision, or participation in a decision was involved on her part.”
Comment: Paragraphs 99 and 100 of this decision stand as an extremely clear (and we would suggest materially correct) statement of the discharge of the duties imposed upon local authorities by both their statutory community care obligations and the MCA 2005.
We found that an error frequently infects public-law decision-making as regards the incapacitated: whilst a best interests meeting seeking to comply with s.4 MCA 2005 can be an extremely important part of the decision-making process, a decision as to the delivery of community care (or indeed healthcare) is ultimately a decision based upon the assessment of (1) what the person’s needs are; and (2) whether what is to be offered properly meets those needs. This is not, strictly, a ‘best interests’ decision, but rather a public law decision.
The public authority must take into account the person’s interests and – crucially – such of their wishes and feelings and/or the views of those properly interested in their welfare as the particular situation requires/allows. However, the views of a capacitous service user will not (in the majority of community care decisions) ultimately be decisive; the person lacking capacity is not put in any better position by virtue of their lack of capacity. By the same token, the Court of Protection cannot then (by taking a decision for on behalf of the person) seek to dictate to the public authority what options should be placed before it for consideration: see A Local Authority v PB and P  EWHC 502 (COP) and Re SK  EWHC 1990 (COP) as well as the pre-MCA 2005 cases of A v A Health Authority  Fam 213, Re S (Vulnerable Adult)  2 FLR 1095 and the Children Act 1989 case of Holmes-Moorhouse v Richmond-upon-Thames London Borough Council  1 WLR 413.
One wrinkle that we should perhaps mention in conclusion in this regard is the position where a person refuses an option advanced by a public authority. Where the person has capacity, it is established that a refusal can discharge the public authority’s obligation (at least in respect of the provision of residential accommodation under the provisions of the NAA 1948) so long as the refusal is maintained: R v Kensington and Chelsea RLBC ex p Kujtim  4 All ER 161; R (Khana) v LB Southwark  EWCA Civ 999. On the facts of an individual case, a refusal might give rise to three possibilities:
1. the refusal is an unwise but capacitous one, falling within Kujtim and Khana;
2. the refusal is in fact one made without capacity, but that it is in the person’s best interests that they receive the care package in question;
3. the refusal is one made without capacity but it is in fact in the person’s best interests notwithstanding its lack of wisdom.
At least where option (3) is concerned, we would anticipate that the public authority would be giving very serious consideration to seeking the endorsement of the Court of Protection to its decision (which would, we note, be a best interests decision, because the authority is not seeking to withhold an option based on any consideration other than those falling within s.4 MCA 2005).