No power for Court of Protection to order care plan changes

Judicial review is the correct procedure to challenge a care plan for an adult lacking capacity, the Supreme Court has confirmed as it upheld an earlier decision by the Court of Protection not to make a specific declaration about a patient’s ‘best interests’.

Giving the Supreme Court’s sole judgment in N v ACCG and Ors [2017] UKSC 22, Lady Hale said the Court of Protection did not have powers to make a declaration in respect of a care patient’s ‘best interests’ and order a care authority to change its plan.

The court, she said, ‘has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the “available options”.’

MN, a profoundly disabled man in his twenties, was eight years old when he was placed into care. He was moved to a residential care home when he turned 18 but his parents, while agreeing this was generally appropriate, wanted to be more involved.

The Clinical Commissioning Group refused, saying this would entail unnecessary additional costs. In response, MN’s parents applied to the Court of Protection for a determination that their suggested involvement would be in their son’s best interest. This would have forced the group to amend the care plan accordingly. The judge’s ruling, upheld on appeal, was that she could not consider the parents’ alternative proposals.

Janice Kaufman is a partner at Steel & Shamash specialising in care and capacity cases, whose firm acted for MN, on the instruction of the Official Solicitor as MN’s litigation friend. She told Solicitors Journal that the ruling ‘made the legal position clearer’.

‘It’s for the public authorities to decide what they can fund; if there is disagreement, the correct forum for a challenge is the Administrative Court, not the Court of Protection.’

In MN’s case, funding for his care had been agreed, and it had also agreed that there would be contact between N and his parents. ‘It wasn’t a case of someone having to live where they didn’t want to, or have not contact with his family, so the Court of Protection could consider MN’s best interests and the contact he would have with his family but only on the basis of the options available,’ Kaufman said.

One issue, Kaufman suggested, was that MN’s parents’ requests – to have contact with him at home and for his mother to be allowed to participate in intimate care – would require additional funding from the care provider because it would have involved specific training for carers. ‘It’s not that there was an objection to them per se, it was that the whole package was going to be more expensive’.

Families are usually involved in discussions with local authorities about care options for relatives. In most cases, the outcome is acceptable to all concerned, but a minority of cases ends up before the Court of Protection.

‘The reality is that most cases ending up in the Court of Protection are difficult,’ Kaufman comments. ‘There is a significant number where there is extreme disagreement; if there was agreement, you wouldn’t go to court. Here, the relationship had become very strained. When you end up in the Court of Protection at what is usually a late stage, it’s difficult to mend bridges’.

Reviewing the circumstances of the case, Lady Hale set out a number of factors the Court of Protection could consider when deciding how it should hear such cases. These included: the importance of the issues to the patient, the cogency of the parents’ demands, the authority’s reasons for rejecting them, and the Official Solicitor’s view.

In the end, however, the court in the present case was ‘clearly entitled to take the view that no useful purpose will be served by holding a hearing to resolve a particular issue’.

Here, the former Law Commissioner continued, ‘there were good reasons, not least in the history, for thinking that the parents’ wishes were impracticable and that the [care authority] had good reasons for rejecting them. In the light of the length of time the proceedings had already taken, and the modifications to the care plan which had been made in the course of them, it was unlikely that investigation would bring about further modifications or consensus. And it would be disproportionate to devote any more of the court’s scarce resources to resolving matters.’

While the issue was originally articulated as one of ‘jurisdiction’ for the Court of Protection, Lady Hale’s conclusions clearly redefined it as one of case management, leaving it open for future applicants to explore alternatives, both in and out of court.

‘Case management along these lines does not mean that a care provider or funder can pre-empt the court’s proceedings by refusing to contemplate changes to the care plan,’ she said. ‘The court can always ask itself what useful purpose continuing the proceedings, or taking a particular step in them, will serve but that is for the court, not the parties, to decide.’

According to Kaufman this is especially important bearing in mind the case load of the Court of Protection. ‘It’s under huge pressure to deal with a vast number of cases, so if the parties want a hearing on any issue, they must convince the court it’s worth judicial time.’

Would that mean that N’s parents were bound to lose? ‘It’s always open to people to ask the court to consider their actions up until now and assess what is possible today – because the orders the courts make are for today and for the foreseeable future.

‘If circumstances change it is open to the parties to ask the court to look again,’ she said. On the facts of this case, however, there may have been little chance of a different outcome.

Jean-Yves Gilg is editor in chief at Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg

This story was updated on 24 March to clarify that Janice Kaufman did not personally act for MN in the case. The solicitor in charge of proceedings for the Official Solicitor was Damian Cullen.