ACCG & Anor v MN & Ors

This is an application by the first applicant ACCG for a final order pursuant to s16(2)(a) of the Mental Capacity Act 2005 (MCA 2005), in relation to a young man MN who was born on 9 November 1993 (20) and who suffers from profound disabilities. The orders sought are that:

The numerous disputes and issues as between MN’s parents, (Mr N and Mrs N), and ACCG and other public bodies are recorded in the voluminous papers in the case and go back to MN’s early childhood. At a Round Table Meeting held in April 2013 the parties have together attempted to resolve matters but to no avail and a court order is now needed in order to regulate MN’s life in his best interests and to bring this protracted litigation to an end.

The brief background is as follows: MN is one of Mr and Mrs N’s 6 children, three of whom suffer from significant disabilities necessitating them living in residential care away from their parents’ home. There are consolidated Court of Protection proceedings in relation to BN and DN, (MN’s brothers) which play no part in today’s hearing.

A care order was made by Mrs Justice Bracewell in respect of MN on 7 December 2001 (when he was just 8), on basis of parental neglect. Her judgment sets out the myriad of serious concerns and findings in respect of the care the parents gave to each of the children, (including MN), and of their inability to co-operate with the authorities in the interests of their children. It should be noted that notwithstanding the proper criticisms levelled against the parents in respect of their care of MN, there has never been any doubt as to their love for, and commitment to, their son or indeed any of their children. An application by the parents to have the care order discharged was refused by Bracewell J on 22 July 2005.

During his minority MN lived at residential placement for children. As MN’s 18^th birthday approached ACC made an application to allow for MN’s transfer to a suitable adult facility. The court gave permission for MN to move to live at RCH which he did on 11 November 2011. ACCG, the 1^st Applicant, took over responsibility from ACC for the funding of MN’s placement where he still lives when he turned 18.

MN has severe learning and physical disabilities together with autism and an uncommon epileptic condition resulting in frequent seizures and risk of sudden death. A nurse has to be available at all times to administer emergency drugs to MN if the need arises. MN has poor muscle tone and uses a wheel chair. He is doubly incontinent. MN has the cognitive ability of a child aged less than 1 year. He has no speech but can express his feelings by facial expression, sounds and gestures. MN needs help with feeding as he is vulnerable to choking; he requires 2:1 care with his personal care and accessing the community. Overall MN has to have his carers near by at all times and during the night MN has one sleeping member of staff and one member of staff who stays awake to look after him.

It follows that MN lacks capacity to conduct litigation or to make decisions in relation to his residence, education or the arrangements for his care or contact with his family. Final declarations in relation to capacity have been made by consent. MN is represented by the Official Solicitor who, on behalf of MN, approves the care package proposed and funded by ACCG.

Mr Ian Gillman-Smith, an Independent Social Worker, was instructed by the Official Solicitor to consider MN’s best interests with respect to residence, care, education and contact. Mr Gillman-Smith’ first report is dated 2 December 201. A 1^st addendum report was filed on 30 May 2012 to respond to the parents’ observations on the first report and following Mr Gillman-Smith having observed contact between MN and his parents. This was followed by a 3^rd report dated 17 May 2013 addressing and updating the issues which seemed now to be at the forefront of the litigation. A further report was filed in these proceedings on 31 October 2013 which related to contact between BN and DN (MN’s brothers) and the family. Finally, on 14 November 2013, Mr Gillman-Smith was asked to read the statements filed shortly before the hearing and to indicate whether his previous conclusions remain unchanged. Mr Gillman-Smith’s involvement has therefore extended for a period of 2 years and his reports run to nearly 300 pages.

Mr Gillman-Smith’s opinion since 2011 has been that RCH provides a safe, settled and supportive environment to MN that can also be proactive with regards to care provision particularly in relation to MN’s physical care needs. The parents have ‘for the time being’ accepted the position as to residence, whilst not accepting Mr Gillman-Smith’s assessment of RCH. They have (not surprisingly), been unable to identify any other facilities which would be suitable for MN and ACCG will not fund a package which would involve MN living at his parents’ home (which, all save the parents, believe would not in any event be in his best interests).

Over the years the relationships as between the parents and care providers and social workers have always been difficult. At its height the father received a custodial sentence for assaulting a social worker and, until relatively recently, he was not allowed to join his wife and daughters on visits to RCH as it was felt that there was a risk that he would be aggressive and intimidate the staff.

Mrs Justice Bracewell has given two judgments in this matter; in the initial care proceedings she set out in detail her findings in respect of the father’s aggression and hostility and of his inability to listen or address an issue. Bracewell J found that Mr N had intimidated the Guardian and had a prolonged history of obstruction of professionals, of refusal to co-operate with authority and of being intimidating to anyone with whom he disagreed. In her judgment in 2005 Bracewell J held that history had repeated itself in the intervening period and she said that she had no confidence that the parents would or could co-operate with professionals. The parents have made it clear in these proceedings that they do not accept, on any level that such findings are merited either in relation to the older or more recent history of this family.

During the course of the present proceedings, and at the instigation of RCH, contact between Mr and Mrs N and MN has been greatly relaxed and increased with the result that the current plan now is that providing the parents give RCH an hour’s notice, (in common with the all the families of residents at RCH), the N family may visit MN whenever they choose. Despite this progress, the parents remain highly critical of RCH and in particular the manager of the care home, who has, notwithstanding the concerns recorded below by the Independent Social Worker in relation to the attitude of the parents, has been the instigator of this new, open contact regime, believing it to be in MN’s best interests.

In his recent report Mr Gillman-Smith expressed his concern that: Staff at RCH are finding difficulty with working with Mr and Mrs N and that they feel intimidated by Mr and Mrs N’s interactions… The fact that RCH has been able to sustain and maintain a consistent placement for two years should be considered a positive.

This observation confirms the assessment made by Mr Gillman-Smith in his early report when he said:

There is no evidence that the parents are willing or able to work with services in such a way. The history available with regards to Mr N and Mrs N’s relationship with statutory and voluntary services has at best been one of disharmony, suspiciousness and disagreement to one of reported hostility, including dismissive and hostile (including reported physical aggressiveness) behaviours.

A recent example of the parents’ attitude is demonstrated by their attitude on two occasions when the Occupational Therapist attended their home to assess its suitability for contact. In relation to the first visit Mr N did not agree to the assessment unless his solicitor was present and thereafter did not allow the Occupational Therapist in the house until the solicitor arrived, and more recently Ms N’s lawyer was present and a note was taken the solicitor having arranged to attend the house to go through a statement at a time arranged in order to coincide with the Occupational Therapist’s appointment. A feature of the attitude of the parents throughout the papers is a resistance to allowing care providers into their home.

The Occupational Therapist concluded that, from an Occupational Therapist perspective only, MN could in principle go for a short visit to the family home. This was on the basis however that no personal care of MN could take place there (MN is incontinent). Trained carers would therefore need to wait outside the family home during the visit and one of the carers would need to be trained to administer emergency medication if the need arose. The parents would have to allow the staff into the house to settle MN and feel confident that they would listen to guidance as to his care. The care home manager, who has been responsible for the increase in contact, asked her staff if they were willing to support MN on such visits. Only the care home manager herself and her deputy were willing, the rest of her staff fearing that the parents would not co-operate, would interfere with the care they provided for MN and would be aggressive and intimidating towards them. They believed there was a high risk of confrontation with Mr and Mr N which would compromise their ability to support MN. If there were ever to be more prolonged visits to the property there would need to be substantial adaptations to the fabric of the building. Mrs N asks that consideration is given to such adaption being carried out at the expense of ACCG.

In all the circumstances RCH are unwilling to facilitate MN visiting the parents’ home. In order for this form of contact to become an available option the ACCG would have to willing to employ, (and train), alternative carers sourced from 3^rd party providers with all the resource implications that would carry. The ACCG wrote to all the parties on 28 October 2013 indicating they would not support contact at home. I understand that Counsel for the parents would regard that letter as being the date upon which the decision was made for the purposes of any subsequent judicial review proceedings.

In her Position Statement of 14 August 2013 Ms Pratley on behalf of ACC, flagged up as an issue in the case as being; the interface between the Court of Protection and the Administrative court making it clear that her case is that the Court of Protection is limited to choosing between the available options and making decisions that MN is unable to make by virtue of his incapacity. It does not, she said, have a wider function of mediating disputes concerning MN’s care and residence more generally. This later submission is relevant in the context of the second issue listed for determination namely as to whether Mrs N should be allowed by RCH to assist in MN’s intimate care when she is visiting RCH. The care home is not willing for this to take place, in part this is due to fears as to Mrs N’s co-operation and, in part, because the parents have declined an offer to have the manual handling training which is necessary for anyone caring for MN who is now a grown man and whose limbs can ‘thrash around,’ particularly if he has a fit, (which fits can occur at anytime with no warning). I am informed by Counsel for Mrs N that she would now be willing to undertake such training.

Mrs N’s case is that she should be able to play a far greater role in assisting with MN’s day to day care, both at RCH and at the family home. She proposes that a specialist provider independent of RCH and ACCG, (but funded by them), be engaged to develop and provide a bespoke support package to cater for all MN’s daytime care and educational needs.

The ACCG’s case is that in a welfare case such as the present, the Court is limited to choosing between the available options. It does not, they submit, have the power to order the applicant to produce other options, although it may make inquiries of the first applicant of other potential options. There is, say ACCG, only one residential package which it is prepared to fund. It is clear, they submit that the most recent offer of contact (unrestricted at RCH plus once a month in the community), affords the parents ample opportunity to see MN. The provision offered they submit, discharges their statutory duties towards MN. The ACCG fund one visit each week and the visit into the community.

It follows that the ACCG’s case is that they will not fund contact at the parents’ home and contact there is not therefore an available option in this case.

The matter having been adjourned at Mrs N’s request in the summer, the case was listed for three days. The issues had narrowed to a dispute as to whether Mrs N should be permitted to assist in MN’s intimate personal care when visiting him and whether contact should take place at the home of the parents. When the court sat it was told, for the first time, that a jurisdictional issue arose as to whether:

No skeleton arguments on the law had been prepared and none of the position statements filed directly addressed, or even identified this legal argument. A bundle of authorities had however been prepared by ACCG and agreement had been reached at the Bar that Ms Pratley (on behalf of ACC and ACCG) and Ms Bretherton on behalf of Mr and Mrs N would address the legal issues. Miss Harris on behalf of the Official Solicitor which supported the Applicant’s position.

Ms Bretherton has indicated that she is of the opinion that an important issue of law is raised which, she says, has been bubbling under the surface for some time and needs to be determined, formal judgment is she says required and thereafter guidance from the Court of Appeal. I therefore took yesterday to write this judgment. At lunchtime, Ms Bretherton, without leave sent an unsolicited skeleton argument with authorities in relation to Human Rights issues; this was followed after 5.00pm with more authorities and submissions in reply from Ms Paterson Ms Pratley. The Official Solicitor expressed the view that the court should decline to take any of the additional submissions into account; (although this morning when I was about to give judgment the Official Solicitor asked me to adjourn judgment for a short time to allow him to file submissions in the event that I dealt with the Human Rights issue). Tempting though it was to decline to accept Miss Bretherton’s late Human Rights arguments and despite the wholly unsatisfactory manner in which this issue has been raised and argued, it seems to the court that Miss Bretherton had found herself in an unenviable position and that the Human Rights arguments having been raised, they must needs be addressed.

The Court of Protection is a creature of statute. The Mental Capacity Act 2005 (MCA 2005), codified the law in relation to incapacitated adults and largely replaced the exercise of the High Court’s inherent jurisdiction which had hitherto, in a somewhat piecemeal and incomplete manner, sought to protect incapacitous (and therefore vulnerable), adults by use of declaratory relief.

By Section 1(5) MCA 2005:

An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

Section 4 MCA 2005 deals with the matters which have to be taken into consideration when determining the best interests of a person who lacks capacity. Section 4(2) says that:

(2)The person making the determination must consider all relevant circumstances and, in particular, take the following steps.

Subsections 4(3) – (8) set out the approach to ascertaining a person’s best interests.

Section 4(9) provides for the situation where a person making a decision on behalf of an incapacitated person is other than the court:

s4(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections 1(1) to 7(7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

It is therefore against that statutory backdrop that both external decision makers (such as public authorities), and the court, approach decisions such as residence and contact in circumstances where a person is unable to make a decision for themselves.

In A v A Health Authority (Fam D)[2002] Fam 213 Munby J, (as he then was), approved a submission in a case dealing with inherent jurisdiction that:

[99]..it is the decision of the incapable person upon which the court adjudicates, whereas in the present case, as he would have it, the court is being asked to review the statutory decision of a public authority

This important distinction applies equally to the statutory code now encapsulated in the Mental Capacity Act 2005. The court’s duty is to make a best interest decision on behalf of a person who, for whatever reason, is unable to make that decision for themselves.

I have been referred to the first decision of the Supreme Court given in relation to the Mental Capacity Act; Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67 which was a case which involved medical treatment and therefore has little direct impact upon the issues before the court today. Miss Pratley drew my attention however to one passage which reinforces her submission that the Court of Protection must resist the temptation to stray beyond that which it is required by the statute. Baroness Hale said:

[18] The Judge began in the right place. He was careful to stress that the case was not about a general power to order how the doctors should treat their patient. This Act 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….. Of course there are circumstances in which a doctor’s common law duty of care towards his patient requires him to administer a particular treatment, but it is not the role of the Court of Protection to decide that. Nor is that court concerned with the legality of NHS policy or guidelines for the provision of particular treatments. Its role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself.

It seems to me that Baroness Hale’s words are equally applicable to a best interest decision relating to issues of residence and/or contact in respect of an incapacitous adult.

An inevitable consequence of a person lacking capacity is that a public authority will often be providing services to that incapacitated person pursuant to various statutory duties. There is a danger of a blurring of the distinction as between the Court of Protection’s statutory duties in a private law context, (namely to consider the best interests of an incapacitated adult), with public law challenges in relation to the willingness, unwillingness, reasonableness or rationality of the services a public authority is willing or able to provide. Munby J (as her then was), considered the tension in relation to cases involving both private and public law issues in Av A Health Authority and another:

[53] There should be nothing surprising about any of this. It is clear that the court exercising its powers under the inherent jurisdiction cannot compel an unwilling private organisation or other outside party to provide a ward of court with education: In Re C (a minor) (wardship: jurisdiction) [1991] 2FLR 168(independent school refusing to admit ward of court), the position must be the same in relation to the provision of other services or facilities, for example accommodation. In my judgment the court exercising its private powers under the inherent jurisdiction can no more compel an unwilling public authority than it can a private organisation or other outside party to provide care and attention to a child (even if the child is a ward of court) or to an incompetent adult. If it is to be said that a public authority is in some different position because it is a public authority then the answer in principle must surely be that this raises matters of public law to be determined, if not in public law proceedings, then at the very least by reference to principles to substantive public law.

Munby J went on at:

[95] Now what is the essential difference between the two types of case? Plainly it cannot turn either on the nature of the human or medical problem which has arisen or on the identity of the parties to the dispute, nor even on the fact that one of the parties, as is almost so in medical – ethical cases in the Family Division, the public authority operating within a statutory framework. No, the crucial distinction goes to the identity of the decision – maker whose decision is being scrutinised by the judge and, crucially, to what precisely it is that the judge is being asked to do.

[96] If the decision which the judge is being asked to review, consider endorse or overturn, as the case may be, is that of the patient, (or her parent) refusing to accept treatment which the health authority or the NHS hospital is willing to provide, then the dispute is a private law dispute which falls properly within the inherent parens patriae jurisdiction and is to be resolved by reference to the best interests test. If on the other hand the decision which the judge is being asked to review, consider, endorse or overturn, as the case may be, is that of the public authority exercising its statutory discretion, then the dispute properly falls to be considered by reference to public law principles.

[97]Putting the point very shortly, if the task facing the judge is to come to a decision for and on behalf of a child or incompetent adult then the welfare of that person must be the paramount consideration. If the task of the judge is to review the decision of a public authority taken in the exercise of some statutory power then the governing principles are those of public law. ”

Shortly before the MCA 2005 came into force, in Re S ( Vulnerable Adult) [2007] 2 FLR 1095, Mr. Justice Charles considered a case where a dispute arose between a local authority and the wife of a vulnerable adult as to whether he should live at home or in a nursing home. Charles J said that the court cannot make or impose different choices from those which would be available to a person who has capacity simply because that person lacks capacity:

[11] If one pauses for a moment and assumes that Mr S did have capacity to make the decision as to where he should be placed and how he should be cared for, it seems to me that his position would be that either he would provide for himself on a privately funded basis or he would rely on, or challenge as a matter of public law, decisions made by public authorities. He would have to choose between what was practically available and what was on offer.

[12] Does the fact that he suffers from an incapacity mean that the court can make and impose different choices? It seems to me that generally the answer to that would be no, it cannot. ”

Charles J having stressed the importance of remembering the respective roles of the public authorities and the court, went on at paragraph [18] to say as follows:

[20]There may well be cases, particularly at their inception, where the court would feel strongly enough as to where somebody’s best interest lie to embark upon a process whereby it reached its own decision before the public law authorities could reach theirs, or reached a decision with a view to negotiating, persuading, or seeking to guide, the relevant statutory decision maker. As I have indicated in my judgment that is something that the court should only do having given careful consideration to the respective rules of the court and the relevant public authorities, particularly at the early stages of the proceedings. However, it seems to me that it is quite common for the courts to provide such assistance as they can to break through procedures and red tape when they feel that decisions need to be made quickly.

[21] Generally, it seems to me that if the court thinks that a decision that has been made by a public authority is within the range of decisions open to a public authority and there is no other public law attack that it would be likely to succeed, it would not embark upon a lengthy trial process with this essentially a view to negotiating with the relevant statutory decision maker…..

[22] …

[23] Again generally it seems to me that when the relevant public authorities have made their decisions the general approach of the court in determining best interests and granting relief under the inherent jurisdiction is one in which the court should focus on what is practically available on the ground, and thus what would be available if, for example, the relevant person was not under a disability and the court was not involved. So even if the court were to disagree with the statutory decision maker, those choices, absent a successful public law challenge, would be dictated by the decisions made by the relevant public authorities, here the PCT ”

Mr. Justice Charles went on to consider the proper procedural approach in such cases and concluded as follows:

[28]The upshot of submissions by and discussions with counsel has, as I understand it, been that all counsel before me now accepts that the correct procedural approach to this case is to deal with and decide the public law challenge first. For the reasons that I have given, in my judgment, that is the correct course.

[29] Further, in my judgment, if the public law challenge fails there is little or no life left in the inherent jurisdiction proceedings this is essentially because, for the reasons I have given, the court should exercise its inherent jurisdiction against a backdrop of the actual choices available. ”

The legal position it would seem was immediately prior to the MCA 2005 coming into force, completely clear.

Soon after the role of private law orders / declarations in public law situations was considered by the House of Lords in Holmes – Moorhouse v Richmond upon Thames LBC [2009]1WLR413. This was a case where a family court had made an uncontested shared residence order in relation to three children. Despite that consent order, the local housing authority had rejected the homeless father’s application for accommodation as a “homeless person in priority need”. Miss Bretherton urged the court to bear in mind the context of a Housing Act case suggesting that the observations by both Lord Hoffman and Baroness Hale in their speeches were therefore of limited use. I do bear in mind the nature of the proceedings with which their Lordships were concerned, but nevertheless regard the views of both Lord Hoffman and Baroness Hale of being of value to this court in determining the issue before it.

The observations of Baroness Hale are of particular assistance concerned as she was with the Children Act 1989 section 1(1) which requires the welfare of the children with which a court is concerned to be its paramount consideration. At [30] Baroness Hale said:

“… It also means that a court may be creative in devising options which the parents have not put forward. It does not mean that the court can create options where none exist.

Then at:

[38]Family Court orders are meant to provide practical solutions to the practical problems faced by separating families. They are not mean to be aspirational statement of what would be for the best in some ideal world which has little prospect of realisation. Ideally there may be many cases where it would be best for the children to have a home with each of their parents, but this is not always or even usually practicable. Family Courts have no powers to conjure up resources where none exist. Nor can they order local authorities or other public agencies to provide particular services unless there is specific power to do so…………. The courts cannot even do this in care proceedings, whose whole aim is to place long term parental responsibility on the state, to look after and safeguard and promote the welfare of children who are suffering or likely to suffer harm in their own homes. …….. no doubt all Family Courts have from time to time tried to persuade local authorities to act in what we consider to be the best interests of the children whose welfare is for us the paramount consideration, but we have no power to order them to do so. Nor, in my view, should we make orders which will be unworkable unless they do. ………

Of particular significance in relation to the present case Baroness Hale continued as follows:

[39] .. but the Family Court should not use a residence order as a means of putting pressure upon a local housing authority to allocate their resources in a particular way despite all the other considerations which, as Lord Hoffman has explained they have taken into account. It is quite clear that that was what the Family Court was trying to do in this case.

In A Local Authority v PB [2011] EWHC 502 (COP) Mr. Justice Charles, now under the umbrella of the MCA 2005, returned to what he described as:

[16] Issues of law concerning the role and jurisdiction of the court exercising what I shall refer to as the best interests jurisdiction under the Mental Capacity Act 2005, and thus, the Court of Protection exercising its jurisdiction, the role of public authorities (here, the local authority) exercising statutory duties owed to adults who lack capacity and the jurisdiction of the courts to review the decisions of public authorities made in the exercise of those statutory duties.

Mr. Justice Charles approached the issue in line with the approach taken by Baroness Hale in Holmes-Moorhouse v Richmond upon Thames LBC as cited above. Having reviewed the judgment of Baroness Hale he went on to say:

[22] What those paragraphs, and the paragraphs I have referred to in Re S, indicate is that, in exercising a welfare or best interests jurisdiction (to my mind, whether under the Children Act, under the inherent jurisdiction, or under the Mental Capacity Act), the court is choosing between available options

Charles J recognised during the course of his judgment, that in the case before him, points were raised (as in the present case), as to how the court should approach issues of fact in the context of arguments relating to competing jurisdictions, (that is to say the Court of Protection and the Administrative Court). He noted that in his case, (again as in the present case), that prior to arrival at the door of the court, the jurisdictional points had not been adequately identified. He emphasised that the public authorities involved (in which he included the relevant local health authorities, the Official Solicitor and the court), needed to be alert and to address jurisdictional points at an early stage. He went on to say:

[29]One of the reasons they need to be alert to the points is to seek to ensure that Court of Protection proceedings are not utilised for an inappropriate purpose. Looked at only from the perspective of the individuals involved, proceedings of this type concern emotional issues and the parties should not suffer distress from proceedings that are inappropriate and / or which cannot achieve the result they want. Money also, of course, comes into play and the court should not spend time (often a number of days) considering what it thinks is in the best interests of P, only to be met by the relevant public authorities saying at the end of the day: “We are not obliged to and are not going to act in accordance with the best interests declaration or an order under section 16 Mental Capacity Act 2005 if it involves the provision of services that we have decided not to provide”

Mr. Justice Charles concluded by saying:

[31]What one can learn from this case, with the benefit of hindsight, is that these jurisdictional issues and, therefore, the legal arguments relating to them need to be flagged up well before the case comes on for final hearing.

Mr. Justice Charles gave a further judgement some months later at the conclusion of the final hearing in A Local Authority v BP and P [2011] EWHC 2675 (COP).In considering where D should reside he said as follows:

[21]As explained in my early judgment given in January ….. the court has to choose between available alternatives. I therefore directed the local authority to make a decision whether it was prepared to provide a package of support for D (and his mother) if he moved to live with his mother and, if so, what that would be. The purpose of that direction was to make clear what the available options were absent either a change of mind by the local authority or a successful judicial review or human rights challenge.

[22] The local authority confirmed that it was not prepared to offer a supported placement at home but would provide one to one support during the day. On advice, the mother confirmed that she was not going to attempt to judicially review that decision, and she has not mounted a human rights challenge to it. In my view, the advice leading to that stance was plainly right because on the common ground and undisputable evidence no public law or human rights challenge is arguable.

[23] This review is not based on the rights and wrongs of past disputes, or disputed allegations, concerning the nature and quality of the care provided to D at home. Rather its primary driver is the degree and nature of the support D now requires, and is likely to require for the rest of his life.

[24] The choice was therefore between the present placement regime and a return home on the basis that the mother would again shoulder the day to day care of D with some respite care.

As an aside I would say that I wholeheartedly endorse the observations of Mr. Justice Charles in respect of the importance of there being clarity in respect of the available options as early as can reasonably be achieved. No matter what criticisms may be levelled against the parents in this case (and no matter how weak their case may seem to be on the papers), they had anticipated until the morning of the trial that, whilst they make a concession in relation to MN’s residence, there would still be consideration by the Court of Protection of the contact issue. Their expectation was that, over three days, witnesses would be called and cross examined and submissions made prior to the court reaching a “best interests” decision as to whether or not MN should have contact at the home of his parents as the first stage of a gradual progression to either living or spending lengthy periods of time with them there. I understand that they may feel that the ground has been cut from under their feet by what Miss Bretherton referred to as the public authorities’ “knock out blow”.

Fortunately, in circumstances where this litigation has already lasted far too long, Miss Bretherton has felt perfectly able to argue the jurisdictional point being familiar with the authorities and the area of law. I am grateful to her for resisting the temptation to make mileage out of the late clarification by the ACCG & ACC of its final position in relation to the jurisdictional issues, one of which arose from ACCG’s decision regarding contact taking place at the family home. Far from it, Miss Bretherton made it absolutely clear to the court that she did not take the point and wished to proceed.

In fairness to the ACCG, the timetable has slipped considerably in this case with reports coming in at the very last minute and decisions in relation to funding inevitably being made late in the day. My deprecation of the way in which the legal argument has arisen should not be taken as any implied criticism of the care given to MN by RCH who have been praised by the ISW for the quality of the care they provide for him. Overall it is a credit to all counsel and solicitors in this case that they have worked hard and collaboratively in order to ensure that the hearing was not lost.

To return to the law: In Re SK [2013] PIQR P4 p 41 Bodey J was considering whether parties in a Queen’s Bench personal injury accident claim involving the same party could be joined to Court of Protection proceedings on best interests issues. Bodey J had a specific heading in his judgment entitled

Bodey J having joined D to the proceedings subsequently gave judgment in Re SK [2013] EWHC (COP) where once again he reverted to the available or foreseeable options:

[10]The Court of Protection is, generally speaking, concerned (there are of course exceptions) with the incapacitated individual’s present best interests, choosing between currently foreseeable or reasonably available options. That much appears both from common sense and from section 4(1) of the Act, which is stated in the present tense. Of course there will also be cases where the court looks forward to the future as part of deciding about the present best interests and where it may wish to retain a measure of oversight and control; but such an approach has to be proportionate and adopted only where there is a reasonable foreseeability of the court being able to take a further decision at a subsequent hearing within a reasonably finite period of time.

Miss Bretherton submits that the proper course is now for the court first to decide what is in MN’s best interests in relation to contact to include a consideration of contact at his parents’ home, and only then, having made that decision, consider the funding options. If funding is not made available in accordance with the court’s best interests decision, the parents can thereafter, if so advised, seek to challenge that decision by way of judicial review. Miss Bretherton therefore says:

With respect to Miss Bretherton, and reminding myself that Holmes-Moorhouse was decided against a different legislative backdrop, to adopt such an approach could be said to fall into precisely the trap deprecated by Baroness Hale at para [39] of her judgment cited above; the Court of Protection would potentially be using a best interests decision as a means of putting pressure upon the ACCG to allocate their resources in a particular way and in doing so would be going against the first principle now enshrined in Aintree that this Act 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.

If MN had capacity, but required the type of nursing care he currently needs due only to his physical needs, he might wish his mother to assist with his personal care. The care providers, (here RCH), may, as here, be unwilling to allow this for whatever reason; perhaps health and safety issues or difficult relationships with the MN’s mother. MN with capacity would have the following options: (i) accept the conditions of residence at the care provider’s establishment (ii) privately fund his care elsewhere or (iii) seek to negotiate with the ACCG in the hope of them agreeing to fund his removal to a different residential unit which would allow his mother to assist with his personal care. What MN with capacity would not be able to do is to force, by way of court order or otherwise, the care providers (RCH) to agree to his mother coming into their facility and ‘assisting’ with his intimate care.

In relation to MN, contact is offered to the parents as often as they wish at RCH and it is currently available three times each week at the care home and once a month in addition in the community. The parents state that they are not taking up all the contact for financial reasons. Contact is not available at the parents’ home. The court in making a decision on MN’s behalf will look to whether the contact available is in his best interests; (had there not been the recent increase in contact, it may well have said it was not sufficiently frequent at RCH). The court should not say that notwithstanding there is no funding for contact at his parents’ home, (whether it be Perth or Mr and Mrs N’s home), the court will nevertheless opt for that hypothetical option.

I accept the submission of Ms Pratley that if the argument advanced by Ms Bretherton that the engagement of human rights is in itself sufficient to broaden the options available to the Court of Protection, it is hard to imagine a more compelling case than Aintree for examining unavailable options, concerning as it did life – sustaining treatment and the engagement of human rights including Article 2 rights. Far from doing so Ms Pratley submits, The Supreme Court could not have stated more clearly that this is not the case; the Court of Protection can only choose between the options available to the incapacitated person. I agree and it is not for the Court of Protection to go behind the clearly defined scope of the MCA 2005.

In the present case there is no suggestion, nor has it been argued, that the CCG or the ACC are in breach of any of their statutory duties or have failed to respect any parties’ Article 8 rights in reaching their conclusions. There have quite properly been negotiations between the parties in relation to the options that are in fact available; for example RCH has been taking MN to meet his parents at a café called H once a month. The parents explained to ACCG that this was difficult for them as they could not always afford a trip to H and therefore McDonalds was substituted as a more affordable option together with the phrase “or other agreed venue” added to the contact schedule in order to give a sensible degree of flexibility. This is precisely the type of negotiation which is to be encouraged in Court of Protection cases.

There will undoubtedly be cases where courts wish to explore with providers the possibility of funding being made available for packages of care which may, for example, have been identified by independent social workers. In my judgment such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a “best interests” trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient’s best interest.

If the providers are unreasonable or irrational in reaching the decisions which have lead to the identification of the available options, that is a public law issue and that decision is susceptible to judicial review. Miss Bretherton makes the point that such an approach is unwieldy, but I return to the observations of Munby J in A v A, that the crucial distinction goes to the identity of the decision maker, if the decision which the judge has been asked to review consider or endorse is overturned as the case may be is that of the public authority exercising its statutory discretion, then the dispute properly falls to be considered by reference to public law principles.

Any delay or increased expense of litigation can be ameliorated to a considerable extent by an early identification of the issues and, if needs be, as in the case of A Local Authority v PB and P, the matter being listed before a Judge of the Division who also holds an Administrative Law ticket. In my judgment such a course not only reflects the law as it stands but avoids a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to “best interests” with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings. Such an approach undermines the first principle that the court can only make a decision that the incapacitated person can make from choices which are available or can, through discussion and negotiation, be made available.

Where then do the Human Rights of the parties fit into all of this? During the course of argument no submissions were made in relation to human rights. Further neither those representing the parents, nor the Official Solicitor on behalf of MN, have, at any stage, sought to assert that the ACCG’s refusal to fund contact at his parents’ home or to allow Mrs N to undertake intimate care of MN, are acts which are unlawful, being incompatible with their Convention rights.

The issue has been raised by Counsel for the father in unsolicited written submissions, the day after the hearing in order to counter the submission made by ACCG that the court, (when making a best interests decision in respect of residence and contact), can ordinarily choose only between the ‘available options’. Despite submissions from the Official Solicitor that the court should not accept those further submissions, (and now responded to by the ACCG and ACC), I deal with the Human Rights arguments for the sake of completeness and conscious that the legal argument in relation to ‘available options’ arose very late in the day leaving the parents with little time for advance preparation of their response.

Ms Bretherton’s core submission put simply is that the court must always conduct a wide reaching enquiry into all options, including hypothetical options, in carrying out its best interests welfare analysis. Failure to do so, she submits means that the court has failed adequately to assess the proportionality of the proposals put forward and amount to a breach of the parties’ Conventions rights in particular Articles 8 and 6.

The Human Rights Act 1998 incorporated into English law the European Convention of Human Rights. The well known structure is that:

Section 6(1) Human Rights Act 1998 says that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Section 7 Human Rights Act 1998 thereafter provides a remedy and gives the court jurisdiction to consider human rights complaints:

“7 Proceedings

(1)

A person who claims that a public authority has acted ( or proposes to act) in a way which is made unlawful by section 6(1) may –

(a)

bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b)

rely on the Convention right or rights concerned in any legal proceedings.

It follows that any determination in relation to MN’s welfare is to be considered against the backdrop of MN’s rights as enshrined in the ECHR both in relation to :

Identification of public authorities of the available options

Ms Bretherton’s relies in her note on the judgment of Lord Neuberger’s in Manchester City Council v Pinnock (Secretary of State for Communities and Local Government and another intervening) (Nos 1 and 2) [2010] UKSC 45, [2011] 2 AC 104 (another case in relation to housing). She refers the court in particular to paragraph 45

45.

From these cases, it is clear that the following propositions are now well established in the jurisprudence of the EurCtHR:

(a)

Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end…..

(b)

A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues: Connors v UK 40 EHRR 189, para 92; McCann vUK 47 EHRR 913, para 53; Kay v UK (App no 37341/06), paras 72-73.

49.

….Therefore, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person’s home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.

Ms Bretherton says, by analogy, that it cannot be compliant with Article 8 to conclude that there is a sufficient remedy by way of judicial review to the public law decision made by ACCG not to fund a care package at the home of the parents. Such an approach, she submits, would deprive Mr N (and his son), from arguing that the refusal to allow home visits at the parents home was disproportionate. In my judgment, if such an analogy is appropriate, then there is already a remedy allowing a detailed consideration of Article 8 issues other than by way of judicial review in Mental Capacity Act proceedings. Section 7 HRA 1998 provides a remedy and a forum for a properly raised and pleaded application setting out the basis upon which it is suggested that the ACCG had acted in such a way as to breach MN’s convention rights when determining the available options to be put before the court for its consideration.

Such a course was forecast by Charles J in A Local Authority v PB & B [2011] EWHC 2675 [21] where he directed the local authority involved to make a decision whether it would be prepared to provide a package of support for D (and his mother) if he moved to live with her and is so, what that would be. He said the purpose of that direction was to make clear what available options were, absent either a change of mind by the local authority, or a successful review or human rights challenge [my emphasis].

In my judgment such a challenge can be made within Mental Capacity Act proceedings. Such a challenge is additional and separately pleaded from the general consideration of Article 8 rights which routinely occurs when a court considers (per Davies LJ para 84 below), which of a number of available options is in MN’s best interests. Such an application is made under s7(1)(b) and must be properly raised and pleaded so that the court can see how it is suggested that the limitation on funding (or other action), proposed by the providing authority would compromise the parties’ Article 8 rights. Only if such a challenge, having been properly raised, is not thereafter fairly determined will Article 6 come into play.

Both Bodey J in Re SK ( para 16 above), and Charles J in PB & P ( see para 33 above), recognised that there may be exceptional circumstances in which a court will decide to consider the best interests of an incapacitated adult in relation to an option which is not, as matters presently stand, available. If a human rights issue is properly raised and pleaded and appears to the court on the pleadings to have some credibility, the court may choose exceptionally to conduct a best interests analysis which includes a consideration of hypothetical options. This would be ordered so as to determine whether the assertion that there is a breach of a party’s Article 8 rights, consequent upon the provider failing to provide funding for their preferred option, has been made out.

I should be absolutely clear that it does not follow that in every case where a provider has declined to fund a package, or limited the available options, that there should thereafter routinely be an assessment of whether such an option would be in the best interests of the patient in order to ascertain whether there has been a breach of Article 8 rights. Far from it.

The law, as I have found it to be presently stated, is that the court may choose only between the available options in the same way as a person would if of full capacity. It may be, that in certain rare circumstances, a court may choose to hear a best interests argument, (as for example Bodey J did in Re SK where there was a possibility of a third party providing funds). Another example is in cases where there is a properly pleaded case showing a credible argument that a provider, in failing to agree to fund a package of care, has in doing so, breached or might breach the human rights of one or more of the parties to the proceedings.

If issues of Human Rights are dealt with in this way then the challenge of the party or parties is considered in an arena peculiarly suitable for consideration of sensitive factual issues.

Equally such an approach ensures that public authorities are saved from the uncertainty and expense consequent upon a routine assessment of best interests in the context of hypothetical care packages under a vague ‘catch all’ of Article 8 rights, often made with the aim/consequence of putting pressure on public authorities to agree to options which they have previously, quite properly, refused to fund.

The Family Division grappled with the issue of the proper procedural way in which to manage such human rights points in relation to care plans in Children Act proceedings in two important cases heard soon after the introduction of the Human Rights Act. Re L (Care Proceedings: Human Rights Claims) [2003] 2 FLR 160 and Re V [2004] 1 FLR 944.

In Re L Munby J drew attention to the distinction between cases where care proceedings had come to an end and where therefore a freestanding application under s7(1)(a) of the Human Rights Act 1998 was the appropriate remedy, and cases where care proceedings were still extant and so s7(1)(b) provided an appropriate remedy within the care proceedings themselves.

In Re V the Court of Appeal emphatically endorsed Munby J’s finding in Re L that complaints under the HRA 1998 which arose before the making of a care order, should normally be dealt with within care proceedings and by the court seized of them. In particular, any point under the HRA 1998 should not, he said, be treated as a discrete issue to be separated from the rest of the case.

In my judgment logic would dictate that applications under s7 HRA 1998 should follow the same procedure as that identified in Re L and approved by the CA in Re V.

In the present case, disregarding the fact that no application under s7 has been made in proper form or at all, it is hard to see how an argument under s7(1) could, on the agreed facts be sustained and a claim maintained that the Art 8 rights of either parent or MN have been breached or that any interference in their family life is disproportionate. Such a claim would have to be made out against the backdrop that ACCG’s refusal to provide the funds for contact to take place at the parents’ home (and thereafter to pay for adoptions to the property), arose in the context of the parent’s home being a property at which MN has not lived (or perhaps even visited) for 13 years and an ‘open door’ plan for contact at RCH a little over 6 miles away. If I am wrong about that proceedings under s7(1)(a) remain available to the parents if so advised.

The Court’s Approach

Article 8 is engaged in Court of Protection cases and therefore forms part of the court’s consideration in cases where it is faced with making a section 4 MCA 2005 ‘best interests’ decision. Lord Justice Thorpe in K v LBX [2012] EWCA Civ 79 said [35]

I conclude that the safe approach of the trial judge in Mental Capacity Act cases is to ascertain the best interests of the incapacitated adult on the application of the section 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of Article 8 rights and whether that violation is nonetheless necessary and proportionate.

He went on to say :[52]:

It is of course of great importance that regard should be had to Article 8 when making decisions on behalf of an adult who lacks capacity. Article 8 declares a right to respect for private and family life, home and correspondence. Courts and local authorities are both public authorities and must not interfere with the exercise of that right except as Article 8(2) provides. It does not need a prescribed starting point to achieve compliance with that.

Black LJ in her judgment dealing with whether Article 8 should be the starting point of any best interests decision said: [53]

Indeed, as the present case illustrates, a prescribed starting point …. risks deflecting the decision maker's attention from one aspect of Article 8 (private life) by focussing his attention on another (family life). In its wider form, incorporating reference to both private and family life, there is a danger that it contains within it an inherent conflict, for elements of private life, such as the right to personal development and the right to establish relationships with other human beings and the outside world, may not always be entirely compatible with existing family life and particularly not with family life in the sense of continuing to live within the existing family home.”

Finally Lord Justice Davies said: [59]

In section 4, it is expressly provided, among other things, that the person making the determination of best interests must consider all the relevant circumstances: with a checklist of some of those then being given. That is amply sufficient to incorporate consideration of existing family and private life: and there is no obvious reason to gloss or promote such consideration into a "starting point"

It follows therefore that consideration of MN’s Article 8 rights are accommodated within a section 4 best interest’s assessment as part of a consideration by the court of all the relevant circumstances. I am satisfied that in concluding by reference to section 4, that the proposals put forward by ACCG are in MN’s best interests that his Article 8 and Article 6 rights are adequately considered and respected. It is not therefore necessary or appropriate in order to accommodate a consideration of MN’s Article 8 rights, for the court to go beyond a consideration of the options put before it by the ACCG.

I find therefore that:

In all the circumstances I accept the submission of ACCG that, contact at the family home is not an available option now or in the foreseeable future and that the court should not now embark upon a best interests analysis of contact at the parents’ house as a hypothetical possibility. Looking at the care plan and taking into account all matters set out in s4 MCA2005 I am satisfied that the contact programme put forward by ACCG and approved by the Official Solicitor is in his best interests.