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:
- 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.
- 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.
- 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.
- 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.