The recent Supreme Court judgment in the case of case of MN v ACCG and Ors[i] sets out clear limits on the powers of the Court of Protection.
MN was a young man in his twenties with severe physical and learning disabilities. He had been taken into care at the age of eight. The local authority had issued an application for orders concerning his future residence and care shortly before his 18th birthday.
A dispute emerged between his parents, who wished him to live with them, and the local authority and CCG which did not consider this to be feasible. The latter argued that MN’s disabilities were so severe that he needed residential nursing care. That view was supported by the Official Solicitor.
The issues were narrowed down to two very quickly in the Court of Protection, namely:
- Whether MN’s contact with his parents should take place in their home, and
- Whether MN’s mother should be permitted to take part in his intimate care when she visited him at the care home
The CCG argued that both of these were impractical suggestions. The parents had a long history of non-cooperation with the existing team of care staff who felt too intimidated to care for MN in his home. The CCG would therefore need to hire a new team of carers to meet the parents’ demands and the CCG argued that the financial implications of this were unacceptable.
The judge, King J, decided that the Court of Protection could only choose between available options when determining MN’s best interests. As the CCG was unable to facilitate either of the parents’ demands for practical reasons, the judge ordered that the only option was to enforce the current care package. King J therefore made this order without hearing any evidence.
He held that a ‘best interests – first, judicial review – second’ basis would not be the appropriate approach for the Court of Protection to adopt.
To do so would result in ‘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.’
The Court of Appeal endorsed this approach but added that this was not to say that care plans should not be subject to the usual scrutiny afforded by judicial review. Although the Court of Protection cannot force the commissioning authority or care provider to do what they do not want to do, it can ask them to think again.
The Supreme Court agreed that the Court of Protection ‘did not have the power to order the CCG to fund what the parents wanted, nor did it have the power to order care providers to do what they were unwilling to do.’
- The Court of Protection is only able to choose from available options
- It is not obliged to enforce alternatives that are impractical
- However, care plans can still be subject to scrutiny under judicial review
- The Court is only obliged to hold a hearing where it will serve a useful purpose to do so
Factors relevant to what amounts to a ‘useful purpose’ are:
- The nature of the disputed issues concerned
- Their importance for the Protected Party
- The cogency of the requests or demands made of the public body
- The reason(s) why those requests or demands have been refused
- Any relevant and indisputable fact in the history of the dispute
- The views of the Protected Party’s litigation friend
- The consequence of further investigation in terms of costs and court time
- The likelihood that such investigation might bring about further modifications to the care plan or agreement between the parties
- Whether an investigation would serve any useful purpose