Judge: Court of Appeal (Sir James Munby P, Treacy and Gloster LJJ)
Citation:  EWCA Civ 411
As Sir James Munby P, giving the lead judgment of the Court of Appeal noted, this appeal “raise[d] fundamental questions as to the nature of the Court of Protection’s jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient’s family.” The Court of Appeal also took the opportunity to give guidance as to conduct of welfare proceedings before the Court of Protection and to clarify when decisions, rather than declarations, should be sought.
The appeal was brought, separately, by both parents of a young man, MN, against the judgment of Eleanor King J (as she then was)  EWHC 3859 (COP). In very brief 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, had 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 parents 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 held that the Court of Protection was – in essence – bound to choose between the options that were actually available.
The scope of the Court’s jurisdiction
After a characteristically thorough review of the authorities, Sir James Munby P had no hesitation in concluding that Eleanor King J was correct essentially for the reasons that she had given:
“80. The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself. The A v Liverpool principle [ AC 363] applies as much to the Court of Protection as it applies to the family court or the Family Division. The analyses in A v A Health Authority and in Holmes-Moorhouse likewise apply as much in the Court of Protection as in the family court or the Family Division. The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future.
The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. And in the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement. I agree with the point Eleanor King J made in her judgment (para 57):
‘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.’”
The President identified four reasons why the Court of Protection should not embark upon hypothetical examinations of where an individual’s best interests lie:
“avoid 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.”
Sir James Munby noted that the present case illustrated the point to perfection: “The present case, it might be thought, illustrates the point to perfection. The proposal was that the judge should spend three days, poring over more than 2,000 of pages of evidence, to come to a ‘best interests’ interest on an abstract question, and all for what?”
A separate issue on the appeal was as to whether the Court of Protection had jurisdiction to determine claims raising issues under the HRA 1998 and (if so) how it should proceed to determine such claims where they were pleaded during the currency of ‘substantive’ proceedings. Sir James Munby agreed with the approach adopted by Eleanor King J, holding (at paragraph 85) that “the decision of the Court of Appeal in Re V is clear authority for the proposition that the Court of Protection (which in this respect can be in no worse position than the family court or the Family Division) has jurisdiction to determine a human rights claim brought under section 7 of the Human Rights Act 1998.” Sir James Munby agreed with Eleanor King J that such a claim must be clearly identified and properly pleaded. He emphasised, however, that nothing in Re V had cast doubt upon the proposition that the HRA 1998 had not collapsed the fundamental distinction between public law and private law. As he had stated previously in R (Anton) v Secretary of State for the Home Department  EWHC 2730/2731 (Admin/Fam): “[a] case which, properly analysed, is a public law case is not transformed into something different merely because Convention rights are relied upon.”
Practice and procedure: when should declarations be used?
As the President noted, there had been a certain amount of debate during the course of oral argument as to the use of declaratory orders in the Court of Protection. Whilst he noted that this was not the occasion for any definitive pronouncement, he made three observations:
“91.. . it might be thought that, unless the desired order clearly falls within the ambit of section 15, orders are better framed in terms of relief under section 16 and that, if non-compliance or interference with the arrangements put in place by the Court of Protection is thought to be a risk, that risk should be met by extracting appropriate undertakings or, if suitable undertakings are not forthcoming, granting an injunction.”
Practice and procedure: identification of issues
The President reiterated the importance of the need identified by Charles J in A Local Authority v PB and P  EWHC 502 (COP),  COPLR Con Vol 166, paras 31-33, to identify, flag up and address, well before a personal welfare case comes on for hearing in the Court of Protection, (i) any jurisdictional issues and the legal arguments relating to them and, more generally, (ii) the issues, the nature of each party’s case, the facts that need to be established and the evidence to be given. This identification had not taken place until a very late stage before Eleanor King and, as he noted “[s]teps need to be taken to ensure, as best can be, that there is no repetition of this kind of problem.”
This led on to wider observations by the President as to the conduct of welfare proceedings before the Court of Protection:
In many ways, the judgment of the President (with whom Treacy and Gloster LJJ agreed) as to the jurisdiction of the Court of Protection should have come as no surprise, reflecting as it did the application of a long line of authorities (dating back over 25 years). However, this does not diminish its importance or the clarity of mind that it then requires all those concerned with the MCA 2005 to bring to decision-making in relation to those who lack capacity in one or more domains related to their care arrangements. Indeed, the judgment is perhaps as if not more important for those concerned with the MCA outside the court arena, reinforcing as it does the need always to be clear what decision is being taken in relation to a person who may lack capacity in one or more domains:
None of the points set out above are – or should be – surprising, but in and out of the court arena we do continue to find that confusion creeps in, leading – where it is not checked – both to (inadvertently) misleading conversations with families and in some cases to expensive and misguided legislation. One particular area that we find where this happens with considerable regularity is in relation to discharge planning from hospital: it is absolutely vital that the relevant statutory bodies are clear with themselves in advance of any meeting with the patient/family members precisely which options are on the table, and which (in proper discharge of their public law functions) they are not prepared to fund.
It is perhaps helpful by analogy to have in mind the One Chance to Get It Right guidance on care-planning at the end of life and the very clear distinctions drawn there between several types of conversations that clinicians may have. In other words, is the conversation that the public body employee would wish to have with the person whose capacity is in issue a conversation to:
The first type of conversation can never lead to a best interests decision being taken where P lacks the capacity formally to engage in it; the second may not, even the third may (in some circumstances), and it is only in respect of the fourth type of conversation that it will be clear that a best interests decision will be made. Put another way, it is only if the decision-maker is standing in the shoes of P that we can properly say that a best interests decision is being made.
Importantly, if a public body brings a matter to the Court of Protection for determination as to where an individual’s best interests lie, then it lies in the court’s power to direct the public body to file evidence (including care plans), even though the plan’s contents may not or do not reflect its formal position, “for it is not for the local authority (or indeed any other party) to decide whether it is going to restrict or limit the evidence that it presents: see Re W (Care Proceedings: Functions of Court and Local Authority)  EWCA Civ 1227,  2 FLR 431” (ACCG at paragraph 37). The analogy between child care proceedings and welfare proceedings will be further strengthened in this regard come 1st July 2015, when Rule 87A comes into effect, requiring the permission of the court before proceedings may be withdrawn. In other words, there will be times when public authorities either may or must seek the assistance of the Court of Protection in discharging their obligations towards those for whom they have responsibility; when they do – and for forensically similar reasons to those which apply in relation to child care proceedings – they must work in partnership with the court.
As a significant amount of the debate before the Court of Appeal as regards the proper place to use decisions involved Alex, it is perhaps not entirely surprising that he entirely endorses the observations of the President! More seriously, it is perhaps obvious when we raise our heads above the parapets (1) that is appropriate to make clear when the CoP is deciding on behalf of an individual as to a matter that they cannot determine because they lack capacity so to do; and (2) the easiest way for the Court to do this is for the Court simply say that it is by making an order under s.16(2)(a). A side-benefit of this is that this makes it considerably easier to identify when it is, in fact, a decision that the individual can take, and hence – hopefully – avoiding the elephant traps into which those concerned fell in ACCG.
The President’s observations as to case management are noteworthy primarily for their trenchancy – they are otherwise entirely consistent with a rising drum-beat of judicial observations that the time has come to get the Court under control. Precisely how this is to be done is a matter that will be exercising the ad hoc Rules Committee significantly over the coming few months.