MN is a 23-year-old man with severe learning disabilities, physical disabilities, autism, and an uncommon epileptic condition which means that he has frequent seizures and is at risk of sudden death.

When MN was 8 years old, a Care Order was made placing MN in the care of the Local Authority.

When MN turned 18 years old, the Care Order was due to come to an end and the Local Authority issued proceedings in the Court of Protection asking the Court to order that MN lived in accommodation provided by them and that MN's contact with his family be regulated and supervised by them also.

On MN's 18th birthday, MN's care was taken over by the Clinical Commissioning Group (known as the CCG) and two days later, he moved to the residential care home where he lives now. The CCG continued the Court of Protection proceedings started by the Local Authority.

Court of Protection proceedings

It was found that MN did not have capacity to litigate the proceedings and so the Official Solicitor acted as his litigation friend. A litigation friend is someone who conducts court proceedings on behalf of someone who does not have the ability to do so themselves.

Everyone was in agreement that MN did not have capacity to make decisions about where he lived or what care and treatment he received. The Local Authority considered that it was in MN's best interests to remain living at the care home and MN's parents also agreed that remaining there was in his best interests for the time being, although their ultimate aim was for him to return home to live with them. Therefore, there were two disputes that the Court was being asked to make a decision about.

The disputes

The first dispute was that MN's parents wanted him to be able to visit the family home which was 6 miles away from the care home where he lived. An occupational therapist had assessed the home as being able to accommodate MN in his wheelchair for short visits however, trained carers would need to go with him to settle him in to the home and then wait outside until the visit had finished. The care home was unwell to provide carers for these visits due to fears that MN's parents would interfere in any care being given and would be aggressive and intimidating towards them. This meant that alternative carers would need to be trained and paid to accompany MN on any visits to his parents' home.

The second dispute was that MN's mother wanted to be able to assist the care home staff with MN's personal care when she was visiting him at the care home. The occupational therapist concluded that this could provide an important element to MN's quality of life as long as his mother was willing to work with the staff. The care home offered MN's mother training in manual handling, which she refused. Consequently, the care home was not willing to allow her to assist.

The positions of the parties

At the hearing of the application, the CCG's position was that it was not in MN's best interests for his mother to be involved in his personal care or for him to have visits to his parents' home. The care home was not willing to facilitate either of these options and the CCG was not prepared to fund alternatives.

The Official Solicitor supported the position of the CCG.

MN's parents disputed the position of the CCG on the basis that the care home's fears about lack of co-operation were unwarranted and MN's mother was now prepared to undergo the necessary training.

The Local Authority's position was that the Court of Protection had no jurisdiction to make decisions on the two disputes before the Court. Their reasoning was that what the parents wanted (i.e. for MN to visit their home and for MN's mother to be involved in his personal care) was not an "available option" as the CCG had stated that it was not willing to allow or arrange it, or to commissions staff or fund the necessary resources. The Local Authority argued that this was a public law decision which could only be challenged by way of Judicial Review and the Court of Protection only had the ability to decide between the "available options", just as MN would if he had capacity to do so.

The Court of Protection's decision

The application was heard by Eleanor King J who accepted the decision put forward by the Local Authority and CCG and concluded that "the Court of Protection has no greater powers than the patient would have if he were of full capacity". She, therefore, chose not to hear the rest of the application.

The Court of Appeal

MN's parents appealed to the Court of Appeal. The President observed that 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 is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient's family".

The Court of Appeal's decision

The President concluded that Eleanor King J was right in her conclusion and the appeal was dismissed.

The Supreme Court

MN's father, supported by MN's mother, then appealed to the Supreme Court.

The barrister for MN's father argued that, under section 16 of the Mental Capacity Act 2005, the Court of Protection has the power to make a decision on any matter that a person lacks capacity to decide for themselves and that, any decision the Court makes, must be made in that person's best interests. The barrister argued that only once that best interests decision has been made should the funding options be considered. The barrister accepted that the Court has no power to order the CCG to fund what the Court considers to be in the person's best interests but that the CCG would be expected to give careful consideration to the Court's findings. Having considered the decision of the Court, if the CCG still refuses to commission, provide or fund, that decision can then be challenged by way of Judicial Review. This was summarised as "best interests first, Judicial Review second", otherwise a public authority would be able to stop the Court of Protection's best interests inquiry at the outset, as had happened in this case.

The Supreme Court's decision

The Supreme Court unanimously dismissed MN's parents' appeal and concluded that, although the Court of Protection had jurisdiction to continue with the planned hearing and hear the rest of the application, it did not have the power to order the CCG or the care home to fund or provide something that they were unwilling or unable to do.

The Court's reasoning was that the powers given to the Court of Protection by the Mental Capacity Act 2005 allow it to make decisions that a person could make if they had the capacity to do so; it does not include the power to compel third parties (such as a Local Authority, CCG, or care home) "to accommodate, or meet, or to provide services or treatment". The fact that the Court has no greater power than making a decision than a person could make for themselves means that it too can only choose between the "available options".

The appeal was dismissed.

A short two-page press summary of the Supreme Court's decision can be found here, with the full 18-page judgment here.

How can Conroys Solicitors LLP help someone in a similar situation?

Conroys Solicitors LLP specialise in both Court of Protection and Public Law/Judicial Review matters.

This case highlights the need to consider challenges of decisions which limit the options available.

In similar cases, it may be possible for decisions made by public bodies (such as CCGs) to limit the available options to be challenged by way of Judicial Review, or other Public Law challenge.

We offer free 30 minute consultations during which we can advise on whether we can assist you with your legal issue. If you would like to arrange a meeting, please contact our office on 01872 272 457.