A Local Authority v X  EWCOP 44 (Holman J)
CoP jurisdiction and powers – interface with public law proceedings
In this case, Holman J too a very Re MN-style case management decision in relation to the question of whether it was necessary to proceed with a full hearing to determine capacity issues in relation to a severely injured man entirely reliant on state care where the relevant local authority made it clear that it was not in position to afford a package of care at his home. Declining set down directions to proceed to an "abstract" determination of capacity in proceedings which has already cost at least £130,000 in public funds, Holman J noted that:
25. The very sad reality of this case and the plight of this person is that, for the rest of his life, he will inevitably be almost totally dependent upon the State for the provision of all his most basic care and needs. It has to be accepted that that care and those needs can only be provided for within a framework that is realistically financially viable.
26. Frankly, if the local authority are unwilling or unable to fund a safe package of care within his own home, there is no other person or body who can, or will do so. Subject only to any possible judicial review of the decision of the local authority, the required safe level of care simply will not be available for him in his home. Of course, if he does have capacity to decide upon his residence, he could, theoretically, discharge himself from the hospital where he is currently being very well cared for and somehow make his way to his home and try to care for himself there. Realistically, his health would very rapidly deteriorate and, frankly, unless re-admitted to hospital, he would die. There is nothing in anything that I have currently heard or read in this case to suggest that he has that sort of "suicidal" ideation, but, rather, he longs to live life to the fullest extent that he can.
27. The patient needs to be given an opportunity now to reflect upon the realities that face him. He needs an opportunity to reflect upon this decision of the local authority. He can fairly ask through the Official Solicitor what minimum and lesser level of care the local authority would be willing to fund if he does have capacity to decide to return home and does, in fact, choose to return home. I do not know what answer the local authority will give; but one possibility is that they will say that they cannot fund any care on that basis, for the situation would be so unsafe for him that they would not be willing to participate in it.
28. So I regret to have to say that, from the perspective of today (and subject to any judicial review), the realistic options in this case may be very limited indeed. If that is so, the question of the capacity of the patient to make decisions with regard to his care may be a very abstract one since, frankly, he may have very little room for capacitous choice.
29. In all these circumstances, I have expressed today, and continue to have, considerable concern and misgivings at the prospect of a hearing lasting several days in late November, involving evidence from at least two psychiatrists as well probably as other witnesses and, indeed, evidence from the patient himself, when there may be very little practical point or purpose in that hearing. It seems to me that there is a real risk here of throwing yet more money away in legal expenditure for very little effective purpose.
Holman J therefore set down a further short directions hearing prior to the full four day hearing to allow (in particular) the local authority to answer the questions posed of them by the Official Solicitor, and the man to reflect upon his situations, and to take stock then whether there was any real point or purpose in the longer hearing currently listed to take place the next week.
Unusually, we will refrain from making any specific editorial comment here because two of your editors (Alex and Neil) are appearing shortly in the Supreme Court on opposite sides of the MN appeal in which the precise limits of the CoP’s jurisdiction vis-à-vis the Administrative Court will be the subject of detailed scrutiny. We will bring you news of the outcome of the appeal as soon as we are able.