N v ACCG & Ors [2017] UKSC 22

MN, a profoundly disabled young man, was cared for in a residential home funded by the CCG. His parents sought home visits and the mother's involvement in intimate care, which the CCG and care providers refused. The Supreme Court held the Court of Protection could not compel funders or providers to deliver care they would not offer.

Facts

MN is a profoundly disabled young man, born in November 1993, with severe learning and physical disabilities, autism, and an uncommon epileptic condition. He lacks capacity in respect of residence, care, education, and contact with family. Following a care order made when MN was eight, his care was assumed by the local authority and, on his 18th birthday, by the Clinical Commissioning Group (CCG), which placed him in a residential care home.

By the time of the final hearing before Eleanor King J, two issues remained: (1) the parents’ wish for MN to visit them at the family home, six miles away, and (2) the mother’s wish to assist care home staff with MN’s intimate personal care during visits. The care home staff were unwilling to facilitate either, owing to concerns about the parents’ history of non-cooperation and intimidation, and because the parents had declined necessary manual handling training. The CCG was unwilling to fund alternative arrangements.

On the eve of the three-day final hearing, the local authority raised the argument that the Court of Protection had no jurisdiction to decide between options not on offer. Eleanor King J accepted this, declined to hear the factual disputes, and made declarations endorsing the CCG’s contact plan. The Court of Appeal (Sir James Munby P) dismissed the parents’ appeal.

Issues

The principal issue was the proper role of the Court of Protection where there is a dispute between providers or funders of health or social care and family members about what should be provided for a person lacking capacity, and specifically whether the court must conduct a best-interests inquiry into options the funder or provider refuses to make available.

Arguments

Appellant (father, supported by mother)

Ms Bretherton QC argued that section 16(2)(a) of the Mental Capacity Act 2005 confers jurisdiction to make decisions on personal welfare, including contact under section 17. The court should determine best interests first; the CCG would then consider those findings; and any continuing refusal could be challenged by judicial review or under the Human Rights Act 1998. Otherwise a public authority could pre-empt the Court of Protection’s inquiry. Ms Weereratne QC emphasised the centrality of individual preferences and the equality and non-discrimination principles of the UN Convention on the Rights of Persons with Disabilities.

Respondents (CCG and Official Solicitor)

The CCG and the Official Solicitor (as MN’s litigation friend) supported the approach of the courts below: the Court of Protection cannot make a decision which P could not have made himself, and judicial review is the proper avenue for challenging public law decisions about funding or provision.

Judgment

Lady Hale (with whom Lord Wilson, Lord Reed, Lord Carnwath and Lord Hughes agreed) dismissed the appeal.

The statutory scheme

The Mental Capacity Act 2005 created a comprehensive scheme allowing decision-makers to stand in the shoes of P and make decisions P cannot make. The decision-maker is in no better position than P. The court’s powers under sections 15 and 16 are limited to decisions P himself could have taken. Lady Hale endorsed the Law Commission’s view (Law Com No 231, para 8.19) that the court has no power to require a public authority to provide services it has decided not to provide, and the statement in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 that the Court of Protection’s role is to decide whether a treatment offered is in the patient’s best interests, not to compel particular treatment or review NHS policy.

The ‘available options’ principle

Drawing on Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7, Lady Hale held that the court must choose between the available options and cannot create options where none exist. Service-providing public authorities operate under their own statutory schemes (such as the Care Act 2014 or NHS provisions), which engage different criteria, including the allocation of scarce resources. Decisions of such authorities are challengeable by judicial review, and may engage Article 8 ECHR, but those processes are distinct from the Court of Protection’s function.

Case management

The issue was not strictly one of jurisdiction. The Court of Protection had jurisdiction to hear the application, but it possesses extensive case management powers under the Court of Protection Rules 2007 and the overriding objective. The court is entitled to decide that no useful purpose would be served by holding a hearing to resolve a particular issue, considering factors such as the nature and importance of the issues, the cogency of the parties’ positions, the litigation friend’s views, the proportionality of further investigation, and the likelihood of consensus. However, providers and funders cannot pre-empt the court’s process by refusal: it is for the court, not the parties, to decide whether continued investigation serves a useful purpose.

Application

In the circumstances – the narrowed issues, the history of parental non-cooperation, the CCG’s reasoned refusal supported by the Official Solicitor, and the disproportionate use of court resources further investigation would entail – Eleanor King J was entitled to conclude that no useful purpose would be served by continuing the hearing. Although she had framed her decision in jurisdictional terms, the substance of her conclusion was sound.

Implications

The decision clarifies that the Court of Protection cannot compel a public authority to fund, or a care provider to deliver, services it is unwilling to provide. The court’s role is confined to choosing between the options that are actually available, mirroring the position of P himself. Disputes about the lawfulness of a public authority’s refusal to provide particular services must be addressed by judicial review or, where appropriate, under the Human Rights Act 1998.

The judgment reinforces the distinct functions of the Court of Protection and service-providing public authorities, which operate on different planes and according to different statutory criteria (including resource allocation). It also affirms the breadth of the Court of Protection’s case management powers: the court may decline to hold a contested hearing on an issue where doing so would serve no useful purpose, applying a proportionate approach informed by the overriding objective.

Lady Hale also offered guidance that orders under section 16 are generally to be preferred to declarations under section 15, endorsing observations of Sir James Munby P about the anachronistic use of declaratory relief.

For practitioners, the case is significant for families, care providers, commissioners, and litigators in the Court of Protection: it confirms that best-interests inquiries cannot be used as a springboard for influencing or pressuring public authorities into providing services they have declined to fund or supply. It does not, however, preclude challenges by judicial review or under Convention rights, and the court remains the arbiter of whether further investigation in any given case is warranted.

Verdict: Appeal dismissed. The orders made by Eleanor King J in the Court of Protection were upheld, though not for precisely the same reasons. The Court of Protection had no power to order the CCG to fund the care the parents sought, nor to compel unwilling care providers to deliver it, and was entitled in the exercise of its case management powers to conclude that no useful purpose would be served by continuing the hearing.

Source: N v ACCG & Ors [2017] UKSC 22