The function of the Court of Protection was to take, on behalf of adults who lacked capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection was thus confined to choosing between available options, including those which there was good reason to believe would be forthcoming in the foreseeable future and, in the final analysis, could not compel a public authority to agree to a care plan which the authority was unwilling to implement.

The Court of Appeal so stated in a reserved judgment when dismissing the appeal by Mrs and Mrs N, the parents of MN, an adult patient, from the decision of Eleanor King J, sitting in the Court of Protection, on 25 June 2014 [2013] EWHC 3859 (COP), whereby she had granted an application by the clinical commissioning group (“ACCG”), for a final order pursuant to section 16(2)(a) of the Mental Capacity Act 2005 that MN, a young man who suffered from profound disabilities and lacked capacity to make relevant decisions for himself, should reside in such accommodation and receive such education and care as was directed by ACCG, and that his contact with parents and other family members be regulated and supervised where appropriate by ACCG. The issues on appeal were: (i) whether the Court of Protection could be prevented from reaching a decision as to what was in the best interests of an incapacitated person (“P”), whether under sections 15 or 16 of the Mental Capacity Act 2005, because a commissioning body had decided not to commission or fund services, and (ii) whether the failure to conduct a full “best interests” assessment in accordance with the principles of the 2005 Act was a breach of articles 8 and/or 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

SIR JAMES MUNBY P said that the issues in the appeal 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 was unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient’s family. Before the judge the issues had narrowed to disputes as to whether (i) the mother should be permitted to assist in MN’s intimate care when visiting him at his adult residential placement (“RCH”) when RCH was not willing for that to be done, and (ii) contact should also take place at the parents’ home when ACCG was not willing to provide the necessary funding for the additional carers who would be needed.

The starting point was the fundamentally important principle identified in A v Liverpool City Council [1982] AC 363 and restated in In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791, 795: “where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to RSC Ord 53: but no abuse of power has been, or could be, suggested in this case.” It was important to appreciate that Lord Scarman was not referring to a rule going to the exercise of discretion; it was a rule going to jurisdiction and it followed that a child, even if a ward of court, had no special privileges, nor had the family court any power to obtain for a child access to resources which would not otherwise be available. Exactly the same principle applied in relation to an incapacitated adult: see Aintree University Hospitals NHS Foundation Trust v James [2014] AC 591, paras 18, 45 and A v A Health Authority [2002] Fam 213, paras 53, 91–93, 95–97, a judgment given in relation to two different cases, one relating to an incapacitated adult, the other to a child. It applied whatever the nature of the proceedings in the Family Court or the Family Division; it applied in private law proceedings under Part II of the Children Act 1989, in public law proceedings under Part IV, and in wardship or other proceedings under the inherent jurisdiction. Moreover, it was equally applicable where “best interests” proceedings in relation to an incapacitated adult were being heard under the Mental Capacity Act 2005. The A v Liverpool City Council principle necessarily carried with it two corollaries: (i) “The court’s decisions as to what would be in the interests of the welfare of the children must be taken in the light of circumstances as they are or may reasonably be expected to be” and (2) there were limits to how far the family court could go: see Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] 1 WLR 413, paras 8, 39. The principle that the family court had not to allow itself to be used to put pressure on a public authority, was well established; and exactly the same principles as applied to care cases involving children applied also to personal welfare cases involving incapacitated adults, whether the case was proceeding in the Family Division under the inherent jurisdiction or in the Court of Protection under the Mental Capacity Act 2005.

It was easy to fall into the trap of thinking that, because, typically, both the court and some other public authority were concerned with the welfare or well-being of a child or incapacitated adult, they were viewing the matter from the same perspective and applying the same principles. The perspective of the court—the Court of Protection or the family court—was a narrow focus on the welfare of the individual child or adult; the perspective of the public authority was necessarily different and much wider, having to have regard to the interests of a very wide group of service users who were, in the nature of things, competing with each other for the allocation of often scarce resources. Here the duty of the Court of Protection, in accordance with section 1(5) of the Mental Capacity Act 2005, was to act in the person’s “best interests”; in contrast, the duty of ACCG, in accordance with section 3(1) of the National Health Service Act 2006, was to: “arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility— (a) hospital accommodation, (b) other accommodation for the purpose of any service provided under this Act … (e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the group considers are appropriate as part of the health service …” (emphasis added).

The core of the judge’s reasoning, found at paras 51-53 of her judgment, was an impeccable statement of the relevant principles correctly applied to the circumstances of the present case. The judge was right in all respects and essentially for the reasons she gave. The function of the Court of Protection was to take, on behalf of adults who lacked capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection was thus confined to choosing between available options, including those which there was good reason to believe would be forthcoming in the foreseeable future. The Court of Protection, like the Family Court and the Family Division, could explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again, but, in the final analysis it could not compel a public authority to agree to a care plan which the authority was unwilling to implement. Agreeing with the judge, his Lordship considered that discussions and judicial encouragement for flexibility and negotiation in respect of a care package were actively to be encouraged; such negotiations were however a far cry from the court embarking on a “best interests” trial with a view to determining whether or not an option, which had been said by the care provider (in the exercise of their statutory duties) not to be available, was nevertheless in the patient’s best interest. There were four reasons why the court should not embark on the kind of process for which MN’s parents contended: (1) it was not a proper function of the Court of Protection (nor, indeed, of the Family Court or the Family Division in analogous situations) to embark upon a factual inquiry into some abstract issue the answer to which could not affect the outcome of the proceedings before it; (2) nor was it a proper function of the Court of Protection (nor of the Family Court or the Family Division) to embark upon a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court; (3) such an exercise ran the risk of confusing the very different perspectives and principles which governed the exercise by the Court of Protection of its functions and those which governed the exercise by the public authority of its functions; (4) such an exercise ran the risk of exposing the public authority to impermissible pressure.

In relation to the human rights issues, his Lordship agreed with the judge’s analysis and conclusions and that In re V (A Child) (Care Proceedings: Human Rights Claims) (Practice Note) [2004] 1 WLR 1433 was clear authority for the proposition that the Court of Protection (which in this respect could be in no worse position than the Family Court or the Family Division) had jurisdiction to determine a human rights claim brought under section 7 of the Human Rights Act 1998; such a claim had to be clearly identified and properly pleaded.

TREACY and GLOSTER LJJ agreed.