Factual and Procedural Background
This opinion concerns an appeal from a decision made by Judge Eleanor King in the Court of Protection on 20 November 2013, which refused permission to appeal. Permission was initially refused by a senior judge but later granted on renewal following an oral hearing. The case involves an incapacitated adult, born in 1993, who suffers from profound disabilities and lacks capacity to make relevant decisions. As a child, he was made subject to a care order and was moved to an adult residential placement before his 18th birthday. The local authority and clinical commissioning group (CCG) are responsible for his care and funding. The appellant parents accept the placement but seek greater contact and involvement in care, specifically requesting permission for the mother to assist in intimate care and for contact at their home. The care provider and CCG have refused these requests, citing funding and operational concerns. The Court of Protection proceedings commenced in August 2011, and the issues narrowed to these contact and care involvement disputes. The judge declined to conduct a best interests trial on hypothetical options not supported or funded by the CCG, concluding that the contact plan proposed by the CCG and approved by the Official Solicitor was in the incapacitated adult’s best interests.
Legal Issues Presented
- Whether the Court of Protection can consider and decide on best interests issues relating to care and contact options that are not funded or supported by the relevant public authority.
- Whether a best interests determination should precede funding decisions by public authorities, or whether the court is limited to choosing between available and funded options.
- The extent to which the Court of Protection can assess human rights claims, particularly under Article 8 of the European Convention on Human Rights, in the context of care funding decisions.
- The appropriate jurisdictional boundaries between private law best interests decisions by the Court of Protection and public law challenges against decisions of public authorities.
Arguments of the Parties
Appellants' Arguments
- The Court of Protection should not be prevented from making a full best interests decision under the Mental Capacity Act 2005 merely because a commissioning body refuses to fund certain options.
- The court’s role includes considering all options, including those not currently funded, and only after a best interests decision should funding decisions be challenged by judicial review if necessary.
- The appellants argued that limiting the court to available options allows public authorities to filter issues and restrict the court’s consideration, undermining its statutory function.
- They contended that the court must safeguard the incapacitated adult’s Convention rights through a full factual inquiry, which judicial review or section 7 Human Rights Act claims cannot adequately provide.
- They accepted that the court should avoid hypothetical investigations where options are clearly unavailable but submitted that the present case did not fall into that category.
- One appellant argued that the CCG’s decision not to allow greater involvement in care was based on best interests, not resource considerations, and thus within the court’s remit.
Respondents' Arguments
- The respondents contended that the Court of Protection is limited to choosing between options that are available or reasonably foreseeable and cannot compel public authorities to fund or provide services they have decided not to offer.
- They relied on established principles that public law decisions by authorities must be challenged by judicial review and that the Court of Protection cannot usurp statutory functions of public bodies.
- They argued that the court’s best interests assessment is confined to the options put forward by the funding authority, and hypothetical options not funded are outside its jurisdiction.
- While agreeing that the Court of Protection can consider human rights claims under section 7 of the Human Rights Act 1998, they disputed the judge’s conclusion that the court had jurisdiction to conduct such a hearing in this case, preferring judicial review as the appropriate forum.
- They emphasized that the decision not to fund contact at the family home was a public law decision not capable of being made by the Court of Protection on behalf of the incapacitated adult.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| A v Liverpool City Council [1982] AC 363 |
Limits on the court's jurisdiction to review merits of public authority decisions under statutory powers; distinction between judicial and administrative powers. |
Established that courts cannot intervene on merits of public authority decisions unless abuse of power is shown; applies equally to Court of Protection. |
| In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 |
Reaffirmed limits on court intervention in decisions of statutory public authorities. |
Supported principle that courts must avoid supervisory role over public authority merits decisions. |
| Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7 |
Courts cannot order public authorities to provide resources or accommodation not available; decisions must be based on available options. |
Applied principle that courts cannot conjure resources; relevant to Court of Protection funding disputes. |
| Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67 |
Court’s best interests powers are limited to what the incapacitated person could do if capable; no power to override public authority policy. |
Confirmed Court of Protection cannot order treatment or services beyond patient’s own capacity to obtain. |
| A v A Health Authority and Another; In Re J (A Child); R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin) |
Court cannot compel unwilling public or private bodies to provide services; distinction between private law and public law disputes. |
Key authority distinguishing when best interests test applies and when public law principles govern. |
| Re S (Vulnerable Adult) [2007] 2 FLR 1095 |
Court must choose between available options in welfare jurisdiction. |
Supported approach that court is limited to practical options presented. |
| A Local Authority v PB and P [2011] EWHC 502 (COP) |
Importance of early identification of jurisdictional issues and limitation to available options; public authorities not compelled to adopt court’s best interests decisions. |
Emphasized need to avoid inappropriate use of Court of Protection and respect for public authority decisions. |
| Re MM; Local Authority X v MM and KM [2007] EWHC 2003 (Fam) |
Court must not endorse care plans breaching Convention rights unless public authority modifies them. |
Illustrated limits on court’s powers to compel public authorities; care plan must respect human rights. |
| Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam) |
Section 7 Human Rights Act 1998 provides remedy and forum for claims against public authorities in family proceedings. |
Supported jurisdiction of Court of Protection to consider human rights claims properly pleaded. |
| Re V (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54 |
Confirmed Court of Protection’s jurisdiction under section 7 HRA 1998 to hear human rights claims. |
Applied to Court of Protection context to allow human rights claims within best interests assessments. |
| In re D (A Minor) [1987] 1 WLR 1400 |
Court should not refrain from exercising jurisdiction to assist public authorities unless conflict arises. |
Clarified cooperation rather than conflict between courts and public authorities. |
| Re S and D (Children: Powers of Court) [1995] 2 FLR 456 |
Court may be forced to choose the lesser of two evils when faced with imperfect care plans. |
Recognized practical limitations on court’s power to improve care plans. |
| Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998 |
Court may invite local authority to reconsider care plans to clarify available options. |
Supported iterative process with public authorities to refine care plans. |
| Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227 |
Court may require local authority to provide evidence on available services for each placement option. |
Ensures court is fully informed of options without compelling unavailable services. |
| MASM v MMAM and others [2015] EWCOP 3 |
Declarations by Court of Protection have no coercive effect and cannot be enforced by committal. |
Limits on declaratory relief in Court of Protection. |
| R (Anton) v Secretary of State for the Home Department; Re Anton [2004] EWHC 2730/2731 (Admin/Fam) |
Human Rights Act 1998 does not remove fundamental distinction between public and private law cases. |
Clarified that public law cases remain public law even when Convention rights are invoked. |
Court's Reasoning and Analysis
The court began by reaffirming the fundamental legal principle from A v Liverpool City Council and related authorities that courts cannot intervene on the merits of decisions made by public authorities exercising statutory powers unless there is an abuse of power. This principle applies equally to the Court of Protection as it does to family courts. The court emphasized that the Court of Protection’s jurisdiction is limited to making decisions that the incapacitated person could make if they had capacity and cannot compel public authorities to provide care or funding beyond what is reasonably available.
The court carefully distinguished between private law disputes—where the public authority is willing to provide care and the court decides best interests—and public law disputes—where the public authority declines to provide care due to resource or policy considerations, which must be challenged by judicial review in the Administrative Court.
The judge’s refusal to conduct a best interests trial on hypothetical options not funded or supported by the CCG was upheld as correct, to avoid the court being used to pressure public authorities into funding decisions. The court recognized the importance of negotiation and judicial encouragement for flexibility but drew a clear line against courts adjudicating on options that are not available or funded.
Regarding human rights claims, the court accepted that the Court of Protection has jurisdiction under section 7 of the Human Rights Act 1998 to hear such claims if properly pleaded, but found no such properly pleaded claim in this case. The court agreed with the reasoning that human rights considerations are incorporated within the best interests assessment of available options.
The court also addressed procedural and systemic issues, criticizing the excessive length and volume of evidence in the case, and highlighted the need for better case management and timeliness in Court of Protection proceedings, drawing lessons from reforms in family courts.
Finally, the court discussed the limited and precise statutory powers relating to declaratory relief under the Mental Capacity Act 2005, cautioning against the use of declaratory orders beyond their proper scope and emphasizing the need for enforceable orders where necessary.
Holding and Implications
The appeals by the appellants were DISMISSED.
The court held that the Court of Protection is confined to deciding between care options that are available or reasonably foreseeable and cannot compel public authorities to provide or fund care packages they have lawfully declined. Best interests decisions cannot be made on hypothetical or unavailable options, and public law challenges to funding decisions must be brought by judicial review. The Court of Protection may consider human rights claims under section 7 of the Human Rights Act 1998 if properly pleaded, but such claims do not transform the fundamental jurisdictional boundaries.
This decision reinforces the separation between the Court of Protection’s private law jurisdiction and the public law functions of public authorities, emphasizing judicial restraint to avoid overstepping statutory powers and resource limitations. Procedurally, the judgment underscores the need for improved case management and proportionality in evidence and hearings within the Court of Protection.