Supreme Court Appeal Heard: 14th and 15th December 2016
Judgment to be handed down: 22nd March 2017

The Supreme Court will hand down judgment in its second appeal concerning the Mental Capacity Act 2005 at 9.45am on Wednesday 22nd March 2017.

What are the issues? Sir James Munby P dismissing the appeal to the Court of Appeal stated, “[this case] raises 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 case was typical of many welfare applications in the Court of Protection. It concerned MN, a young man with severe learning and physical disabilities. Shortly before his eighteenth birthday, the local authority under whose care he had been from the age of eight applied for orders regarding his future residence and welfare. His parents opposed the application. They wished their son to return to live with them. However, both the local authority and CCG who took over his care during the proceedings contended he should live in full time residential care with 24 hour nursing.

By lunch time on the first day of the final hearing there were only two disputed issues. They were (i) whether MN’s mother should be allowed to participate in his intimate care when she visited him at the care home and (ii) whether contact should take place at MN’s parents’ home. The CCG had refused the parents’ requests in respect of both matters. The first on the grounds of concerns for MN’s safety and the second on the ground of cost. A new, additional care team would have been necessary to facilitate the home visits, the existing care team (save for their manager and her deputy) having indicated that they were too intimidated by the parents to care for MN in their home.

The parents argued before the Court of Protection that a fully contested best interests hearing should proceed. However, the judge concluded that as neither participation in MN’s intimate care nor contact within the parents’ home were “available options,” the court should not embark upon a hearing and best interests analysis of what were merely hypothetical possibilities. She granted the orders sought by the local authority and CCG despite the parents’ submissions that a determination of MN’s best interests by the Court of Protection was a necessary precursor to any subsequent judicial challenge to the CCG’s decisions. Without such a determination any judicial review, they argued, would be “premature and academic.”

The parents appealed to the Court of Appeal. In dismissing the appeal Sir James Munby P gave four reasons as to why the judge had been right:

First, it is not a proper function of the Court of Protection … to embark on a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it. Secondly, it is not a proper function of the Court of Protection …to embark on a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court. Thirdly, such an exercise runs the risk of confusing the very different perspectives and principles, which govern the exercise by the Court of Protection of its functions and those which govern the exercise by the public authority of its functions – and, in consequence, the very different issues which arise for determination in the Court of Protection in contrast to those which arise for determination in the Administrative Court. Fourthly, such an exercise runs the risk of exposing the public authority to impermissible pressure.”

The parents appealed to the Supreme Court. They argued that the Court of Appeal’s judgment meant that a public body could usurp the Court of Protection’s decision –making powers by removing an option a service or option from the court’s consideration by simply refusing to fund it. That could not be what Parliament had intended when the Mental Capacity Act 2005 had come into force. Second, the parents’ Article 6 and 8 rights had been breached by the judge’s refusal to embark on a best interests hearing.

Those arguments were resisted by both the CCG and the Official Solicitor. After hearing oral submissions over a day and half, Lady Hale commented that this was “a difficult and important case” in which all members of the court were “extremely interested.”

Exactly how the Supreme Court has resolved the issue will be seen on Wednesday morning. However, what is certain is that the court will be keen to define the parameters of the Court of Protection’s powers and to comment on the case management of health and welfare applications. The judgment is likely to become a cornerstone in the Court of Protection’s jurisprudence for the foreseeable future.

The author, Fiona Paterson was junior counsel for the CCG.