This case raised fundamental questions as to the nature of the Court of Protection’s jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient’s family.
The issues between the Patient N’s parents and the respondent clinical commissioning group (the CCG) were whether N could visit the family home and whether his mother could assist care home staff with his intimate care when she was visiting him there. The respondent considered that neither was in N’s best interests: the first would require additional trained carers which it was not prepared to fund, and the care home staff had concerns about the second, after the parents had declined an offer of the necessary training in manual handling.
At the hearing the respondent argued that the Court of Protection, on N’s behalf, could only decide between the ‘available options’ and that it was inappropriate to try to obtain a best interests declaration to put pressure on the respondent to make further funding available. The judge agreed that she could not consider the parents’ proposals for this reason, and she declared that the contact plan proposed by the respondents was in N’s best interests. The Court of Appeal upheld the judge’s decision.
The Supreme Court unanimously dismissed N’s parents’ appeal. Although the Court of Protection had jurisdiction to continue with the planned hearing, it did not have power to order the respondent to fund the parents’ plan, nor to order the actual care providers to do that which they were unwilling or unable to do. The judge had therefore been entitled to conclude that no useful purpose was served by continuing the hearing.
Read the full text of the judgment and the press summary on the Supreme Court website
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