This is an appeal from the decision of Eleanor King J, as she then was (see ACCG and another v MN and others  EWHC 3859 (COP);  COPLR 11). There were in essence two matters on appeal; first, whether the court should be prevented from reaching a decision on what was in the Patient’s (‘P’) best interests where a commissioning body has reached a conclusion not to commission or fund a service; secondly, where the court decides not to conduct a full ‘best interest’ assessment in accordance with the principle of the Mental Capacity Act 2005 (‘MCA’), is this a breach of Articles 8 and 6 of the Human Rights?
P is a young man of 22 being born in 1993. He has profound disabilities and lacks capacity to make decisions for himself. When P was 8 years old he was made the subject of a care order. Shortly before his 18th birthday P was placed in an adult residential placement, RCH, where he still remains.
P’s parents wanted P to ideally return home but reluctantly accepted that P should remain in RCH. The dispute was whether P’s mother should be able to assist in P’s intimate care when visiting P at RCH; and whether contact between P and his parents should take place at the home of P’s parents.
RCH was not willing for P’s mother to assist in the intimate care during contact at the residential home. ACCG (the commissioning group responsible for funding P’s placement from the local authority when he reached 18 years) stated that it was not willing to provide funding for the extra carers needed if P were to have contact at the home of P’s parents.
The court reviewed many authorities relating to the court’s function when other public bodies were involved. The main authority referred to was A v Liverpool City Council  AC 363 (re-stated in Re W (A Minor) (Wardship: Jurisdiction)  AC 791). The authorities state that the court is unable, whether under the Children Act 1989, the Court of Protection, or the court exercising its powers under the Inherent Jurisdiction, to compel or pressure other public bodies to take certain decisions that the court thinks is best.
The court and the ACCG come at the matter from a different perspective: the court is concerned with the welfare of the patient and the ACCG will have to have regard to a wider group of service users and has to balance the wider public interest (see paragraph 46). The court has to act in P’s best interest (section 1(5) of the MCA), and the ACCG’s duty is in accordance with section 3(1) of the National Health Service Act 2006.
The court is only able to make decisions on behalf of P. The court at paragraph 14 referred to Baroness Hale in Aintree University Hospitals NHS Foundation Trust v James and others  UKSC 67 where at paragraph 18 she stated:
"This Act [the Mental Capacity Act 2005] is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full capacity.”
The court is only able to choose from the options available (paragraph 24 and Re S (Vulnerable Adult)  2 FLR 1095).
The court considered the Human Rights Act 1998 and how these claims should be brought within these types of proceedings.
The court dismissed the appeal confirming that Eleanor King J was “right in all respects and essentially for the reasons she gave" (paragraph 79). The court’s function is to take decisions of the P that he can take if he were to have full capacity. The court has no more power, nor can it obtain resources or facilities from a third party, whether private or public, because it is acting for a P who lacks capacity.
Where there is a section 7 Human Rights Act 1998 claim the Court of Protection does have jurisdiction to determine such a claim. However "such a claim must be clearly identified and properly pleaded" (paragraph 85).
The court emphasised, in proceedings such as these, that discussions, flexibility and judicial encouragement should be actively encouraged.
The case thoroughly summarisies the court’s role and its powers in relation to other public bodies. At paragraph 11 the court referred to Lord Scarman at paragraph 797 in A v Liverpool where he stated:
"The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, is seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.”
The court should not embark on a lengthy trial or use up resources on a hypothetical situation (for example where a patient might prefer to live and it would be in his/hers best interest) when the reality is that that situation is never going to be available. The Court of Protection should not be used as a ‘springboard’ for possible proceedings in the Administrative Court (paragraph 82). The option available to a litigant in a situation where they disagree with the options is to judicially review the decision in the Administrative Court.
The court made some observations regarding the declaratory orders. First, the Act allows for more extensive powers under section 16 in addition to the declaratory powers in section 15. Secondly, section 15 is very precise and the court doubts that section 47(1) of the Act can extend the declaratory powers. Finally, the court clarified that the declaratory powers cannot be enforced by committal therefore it may be best to frame the order in terms of section 16 (paragraphs 87-91).
The court also made observations regarding the increasing amounts of evidence being placed before the court and the amount of issues being put forward for determination. The court made comparisons to the changes already made in Children Act proceedings and the need for Court of Protection cases to follow in a similar way. The court stated that consideration should be given to amending Rule 121 of the Court of Protection Rules to come into line with section 13(6) of the Children and Families Act 2014 (paragraphs 92- 107).
This case reinforces the tougher attitude the President expects the courts to take to ensure compliance with the required rules and court orders.
Read the full text of the judgment on Bailii
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