The decision concerned a fundamental aspect of the Court of Protection’s jurisdiction; namely what approach should it adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient, or by the patient’s family? 

Should the COP carry out a best interests assessment first, with which the patient can then bring a judicial review challenge against the care provider’s decision? 

The President of the Family Division (sitting as a Lord Justice of Appeal) thought not and provided 4 reasons for his conclusion:

  1. It is not a proper function of the COP to embark upon a factual inquiry into an abstract issue, the answer to which cannot affect the outcome of the proceedings before it.
  2. It is not a proper function of the COP to embark upon a factual inquiry designed to create a platform or springboard for possible judicial review proceedings.
  3. Such an exercise runs the risk of confusing very different perspectives and principles which govern the exercise of the COP and its functions and those of a public authority - and in consequence the different issues which arise for determination in the COP and the Administrative Court.
  4. Such an exercise runs the risk of exposing the public authority to impermissible pressure. Rigorous probing, searching questions and persuasion are permissible; pressure is not. 

It is anticipated that the appeal will be heard during December 2016 or January 2017.