We know that best interests decisions have to be made among the ‘actually existing options’, but what happens when those options are seriously constrained by resources or for other reasons? What if none of the ‘actually existing options’ seem desirable? This is a question that has appeared in many Court of Protection cases and will soon be answered by the Supreme Court. I’m delighted to host this guest post by Dr Beverley Clough, a lecturer at Leeds University, who considers these issues.
- The Court of Protection has the power to make decisions on financial and welfare matters for people who are found to lack mental capacity under the Mental Capacity Act 2005.
- The Mental Capacity Act says that decisions have to be made in that persons best interests.
- Recent cases in the Court of Protection have shown that the court lacks the power to make local authorities provide particular services.
- If the local authority will not fund a particular care package, the Court of Protection cannot force them to.
- This is worrying given that local authorities are making cuts to services. This also has an impact on the rights of disabled people.
- There will be an appeal case heard in the Supreme Court (which is the highest court in England, Wales and Northern Ireland) in December when judges will decide if this is the right legal approach.
What should the Court of Protection do when asked to authorise a deprivation of liberty of a 34 year old man, with autism, ataxic cerebral palsy, hearing and visual impairments and a learning disability, who has been living in a placement for 9 years which is wholly unsuitable for his needs? His flat (where he is confined unless taken out by staff) is too small to accommodate his wheelchair and has no outside space. He moves by pulling himself along the floor as a result of which he has sustained painful bursitis in both knees and he also has calluses to his knees and ankles. The Local Authority, however, state that there is no alternative accommodation. These facts were the subject of the litigation in NYCC v MAG  EWCOP 64,  EWCOP 5.
Questions about what the Court of Protection can do, and what the Court of Protection should do in these circumstances are becoming increasingly significant. The Law Commission, in their consultation on the Deprivation of Liberty Safeguards and the Mental Capacity Act 2005, drew welcome attention to this issue – namely, the interaction between the Mental Capacity Act 2005, and the Care Act 2014 (paras 11.46-11.51). The interaction between these legal frameworks has previously been relatively overlooked in debates about disability rights, equality and state responsibilities. One of the key cases on this, Re MN  EWCOP 3859,  EWCA Civ 411, (discussed below) is due to be heard by the Supreme Court in December this year.
How these statutes interact, and how the judiciary see their role in this, impacts starkly upon the enjoyment of rights of individuals with cognitive impairments. Access to services, inclusion in the community, the endurance of personal and intimate relationships, and accommodation issues are all at stake in these decisions, and these are central to enabling the meaningful enjoyment of the rights contained in the ECHR and the UNCRPD.
Case law so far
The case in which these issues became prominent, and really began to trouble the Court of Protection, was ACCG v MN  EWCOP 3859. The case involved the decision of the CCG to refuse to fund contact between P and his parents at his parents’ family home. The CCG argued that, as this was not something they were willing to fund, it should not be taken into consideration in the court’s analysis of best interests. This raised an important jurisdictional issue around the powers of the Court of Protection. King J stated that,
“[a]n 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” (Para 34)
The judgment makes it clear that there is no scope for demanding particular treatments or services via the Court of Protection, as this is not a right afforded generally in health and social care. Reference is made to the line of case law, stemming from Munby J’s (as he then was) judgment in A v A Health Authority (Fam D)  Fam 213 and culminating in the more recent decision in Aintree v James  UKSC 67, Para 37. King J considered that if the court were allowed to consider where MN’s best interests lay before deciding the issue of funding options, this would entail the Court of Protection potentially “using a best interests decision as a means of putting pressure upon the ACCG to allocate their resources in a particular way” (Para 52). In rejecting this approach she held that the Court of Protection’s role was limited to deciding between the options which are placed ‘on the table’ by the clinician, local authority, or CCG.
On appeal, in Re MN  EWCA Civ 411, Munby LJ upheld and fully endorsed King J’s judgement and analysis of the law. He stated that,
“The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself … The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future.” (Para 80)
Munby LJ went on to state that, following the principles stemming from previous analysis in welfare cases the court cannot alter a care plan but instead may try to persuade the local authority to reconsider .
He referred further to the case of Re MM in which he gave judgement regarding contact and residence. In that case he had stated that,
“If the local authority seeks to impose on MM a regime which in fact involves a breach of her Art 8 rights – and that … I agree, is the consequence of imposing on MM a regime which in practical terms prevents her continuing her sexual relationship with KM – then the local authority in principle has a choice. It must modify the arrangements so that there is no breach of Art 8. And in the circumstances of the present case it can do this either by abandoning its attempt to prescribe where and with whom MM lives or, if it wishes to exercise that control, by taking appropriate positive steps to enable MM to continue her sexual relationship with KM. If it seeks to do the one without shouldering the burden of doing the other, then its intervention in MM’s life is … disproportionate. And in my judgment it involves a breach of her rights under Art 8.” (Para 163)
This, in many ways, seems to be a promising statement in terms of ensuring that local authorities respect the rights of individuals when considering care plans. Indeed, he went on to state that,
“In the first instance it is for the local authority to prepare a care plan spelling out in appropriate detail and precision what it proposes to do in order to modify the current arrangements in such a way as to avoid a breach of Art 8 of the European Convention; specifically, if it wishes to pursue its plan for MM to remain at her current placement, what it proposes to do in order to facilitate her sexual relationship with KM. The care plan can then be considered by the court. The court cannot be compelled to accept the local authority’s plan, any more than it is obliged to accept the plan propounded by a local authority bringing care proceedings under Part IV of the Children Act 1989. On the contrary, the court is required to act in the best interests of the vulnerable adult and must not – is forbidden by s 6 of the Human Rights Act 1998 to – endorse a plan which in its view involves a breach of Art 8.” (Para 166 emphasis added)
Despite the strength of this statement, Munby LJ, in Re MN, went on to explain this position further, stating that,
“I did not assert, and I do not assert, any right in the court to compel a local authority to accept a plan which commends itself to the court. If there is an impasse, then the court must select the lesser of the two evils: in a case like MM, endorsing the local authority’s plan or dismissing the proceedings”. (Para 38)
The position now is clear that the Court of Protection cannot direct that resources be used in a particular way, or alter a care plan. The Court can probe, question and persuade the public authority, but pressure is not permissible.
There were some bold attempts made by Glentworth DJ in NYCC v MAG  EWCOP 64 to circumvent the potential difficulties that such an approach may entail in practice, and the consequent powerlessness of the judiciary to respond to unsuitable care packages. She did this by refusing to authorise the deprivation of liberty of MAG as she felt that it breached his Art 5 rights, given that the conditions of his accommodation were overly restrictive and not appropriate or justified by his unsoundness of mind. In NYCC v MAG  EWCOP 5, Cobb J allowed the appeal by NYCC delivering a scathing judgment of Glentworth DJ’s approach – see paras 22, 24, 36, 52 and 62 for a flavour of this. In some ways, the judgment reminded me of the deprecating tone of the majority in McDonald towards Lady Hale for her dissenting judgment. It is worth a read in full, but essentially Cobb J felt that Glentworth DJ had allowed her frustration at the authorities to cloud an otherwise clear and settled legal issue, and cited with approval the judgment of Munby LJ in Re MN. It is worthy of note, however, that due to Glentworth DJ’s refusal to authorise the deprivation of liberty, alternative and suitable accommodation had been found for MAG- something that the authorities had purportedly been unable to do since 2013 (or possibly earlier- see paras 34, 35 and 36 of Glentworth’s judgment for an idea as to the wrangling between the authorities on this point).
Hollowing out best interests
These cases go to the heart of the enjoyment of rights enshrined in the ECHR and the UNCRPD and yet in these judgments rights arguments are at best peripheral, or at worst glossed over. One of the mechanisms adopted by the courts for marginalising ‘rights’ is recourse to ‘process’, – for example much is made of s7(1)(b) of the Human Rights Act 1998 and the way in which such arguments ought to be presented. This is an unattractive approach, minimising the central importance of disability rights: suggesting that somehow these rights do not impose obligations on courts unless printed in the correct black font on a white A4 properly lodged skeleton argument. An argument rendered even more unattractive by the fact that the ‘subjects / objects’ of these proceedings are palpably incapable of understanding the niceties of the Civil Procedure Rules.
One of the key points that arises in these judgments is that the correct forum for disputes as to care packages ought to be matters for judicial review, not the Court of Protection. In many ways, this is an illusory option. The reality of the situation is that it is hardly ever the individual themselves who has chosen the forum for the dispute. Often it is the local authority who brings the case to the Court of Protection – see the report by Cardiff on the use of the Court of Protection in welfare cases here. Additionally, legal aid reforms have impacted on the ability to fund cases in this context, making the ability to choose this route more illusory than real. Moreover, it is worth noting the difficulties in succeeding in challenges to care packages in the administrative court. Elaine McDonald’s case, for example, has led to widespread criticism of the approach taken by the judiciary to such challenges (see here and here) stemming in part from the narrow grounds on which judicial review can be granted, and partly due to the somewhat artificial binary in jurisprudence in English law between civil and political rights on one hand, and socio-economic rights on the other (see here and some of the work of Colm O’Cinneide for interesting constitutional perspectives on this). Interestingly, the UNCRPD is said to be innovative in this regard in that it seamlessly melds these two ‘types’ of rights together.
The suggestion that judicial review is the forum to challenge care packages was rightly recognised by King J ACCG v MN (with reference to Manchester City Council v Pinnock  UKSC 45) as of questionable suitability for resolving sensitive factual issues. She identified the importance of s7 of the Human Rights Act 1998 for enabling scrutiny of human rights issues in the Court of Protection provided they have been introduced in the correct procedural manner.
It is difficult to see how the suggestion in MAG that Art 3 may be engaged by somebody needing to crawl around their accommodation, resulting in serious health problems, should be treated with such contempt by Cobb J. In many ways, it defies logic to be able to suggest that such arrangements are in MAG’s best interests. The vigour with which Cobb J seeks to dismiss the mention of Art 3 is concerning. He seeks to do so by directing attention to how such a suggestion is ‘deeply offensive to the conscientious care staff’ and is ‘inflammatory and unhelpful’(Para 56). With respect, the engagement of Art 3 by the care arrangements should not (and I imagine was not) intended to denigrate the care staff who perform their job in a way that is constrained by care plans. The suggestion of a breach of Art 3 is directed towards the accommodation that has been provided by NYCC and the housing authority. There are also questions to be raised as to the way that other convention rights were dealt with in the judgment.
The discussion as to Art 5 was similarly infused with ideas as to MAG’s ‘happiness’ as meaning that the deprivation of liberty was appropriate. Cobb J suggested here that there was evidence to suggest that MAG was happy in the accommodation, and moreover that to move him would cause “devastation” (Para 43). Moreover, he went on to cite with approval Lady Hale’s statement in Cheshire West that “they may be a good deal happier and better looked after if they are” deprived of their liberty (Para 43, citing Lady Hale at Para 34). With respect, this is a rather hollow and potentially dangerous argument to make. Notwithstanding the reliance on the evidence of one person to justify this conclusion, such an approach to appropriateness under Art 5 jurisprudence has the potential to ratchet down our ideas of what are acceptable standards by reference to an idea of happiness that may have been formed in the context of a lack of real or meaningful options. Nussbaum, for example, has discussed the idea of ‘adaptive preferences’ which can lead to the distortion and ultimate acceptance of their circumstances by individuals who have their choices and opportunities systematically constrained. The reliance on presumed happiness here is thus a matter of concern.
It is salient to note here that had a human rights argument ‘stuck’ in these cases, then the court would have been able to more strongly engage with the authorities in ensuring that they drew up another care plan that did not breach the persons human rights. This was clearly understood by Cobb J in MAG (Para 39) and Munby LJ in MN (Para 43). What is interesting to consider is what the effect on the outcome would be if human rights were deemed to be breached here, and the relevant parties refused to alter the care plan (on the basis of no alternatives being available in either case). In MM, the local authority did alter the plan and Munby J (as he then was) was satisfied that this prevented any breach of Art 8. It is unclear what would have happened had they not. It is also worthy of note here that Art 8 was not engaged with in Cobb J’s judgment in MAG. This is all the more surprising given the centrality of Art 8 to the judgment in MM and the subsequent ability for more intensive scrutiny of the local authorities care plan in that case. The silence around Art 8 in these cases is frustrating. As Luke Clements has illustrated, the judiciary so far have not engaged with Art 8 in an adequate way or fully realised its potential in the realm of disability rights.
Another prominent feature of the reasoning in these judgments is the idea that the courts can only do for a person lacking capacity what a person with capacity would be able to do, as discussed above. The argument goes that given people who have capacity cannot demand a particular medical treatment or care plan, then it would thus not be fair if this was an option for the Court of Protection standing in the shoes of the person without capacity. On one level, it is questionable whether the power dynamics within the relationship between the individual and the local authority can be compared in this situation. This is not to say that those deemed to have capacity are necessarily always in a powerful position to assert and negotiate with the local authority or care provider. There are, however, very different legal consequences and options depending upon whether and individual is deemed to have capacity or not. At Para 53 of ACCG v MN, King J argued that
“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”.
However this seems to miss a fundamental option that would be open to MN if he had capacity and this is to walk away. It is clear that a person who has capacity, and, for example, wishes to refuse to move into a funded residential placement, can do so. If they reasonably refuse the care plan, and a preferred plan could be delivered with no additional resource burden, then a local authority may be obliged to consider an alternative care plan in order to discharge its statutory duties. See, for example, Khana v London Borough Of Southwark  EWCA Civ 999 where it was said that
“Mr Drabble invites consideration of a situation, perhaps not uncommon, involving an elderly person living at home, whose needs are assessed as requiring the provision of a place in a residential home. If he or she refuses that proposal – on whatever ground, reasonable or unreasonable – the local authority cannot treat themselves as discharged from any further duty to provide community services (e.g. Meals on Wheels, or clean laundry) to him or her at home. I would accept that submission” (Para 51)
Theoretically, at least, somebody with capacity could legitimately walk away from a care setting that they didn’t want to be in (however this may be practically limited by their physical ability to do so, as potentially it is in MAG and MN’s case). Somebody who lacks capacity, however, is not free to do so, and their liberty can be curtailed by best interests decisions or DoLS. This is a fundamental difference between somebody with capacity and somebody without capacity.
Whilst it is true that the decision by the relevant authority as to what care package to offer is not driven by best interests considerations (see R (Chatting) v Viridian Housing  EWHC 3595- although it is now guided by the ‘well-being’ principle in the Care Act 2014) the consent to this package, or conversely the refusal of it, does raise questions of capacity and best interests. If somebody lacks capacity in relation to deciding on their care or residence then somebody will need to step in their shoes to consent to or refuse the package proposed (and bear in mind here the judgment in CC v KK and STCC that the decision as to capacity here must not be made based on a blank canvas- the person must be presented with the options ‘so that their capacity to weigh up these options can be fairly assessed’ Baker J at Para 68).
It is clear that the court’s stance in these cases stems from Lady Hale’s judgement in Aintree v James. Lady Hale was influenced in her judgement by the well-known dicta asserted in R (Burke) v General Medical Council  EWCA Civ 1003 (as well as R v Cambridge District Health Authority, ex p B  1 WLR) that a patient has no right to demand a treatment which a medical professional does not think is clinically appropriate. However, it must be questioned whether the nature of clinical decision making is comparable to the nature of decision making around access to services or residential options, and whether the principles can be directly transposed.
There may be relevant differences between medical clinical judgment and professional judgment in the context of social care. Is the relationship of social care practitioners (possibly several) to a service user equivalent to that of a doctor with their patient? Arguably medical clinical judgment is, theoretically at least, determined by more objective factors, based on the doctor’s own scientific knowledge, whereas community care decisions are more greatly determined by social factors and personal values. It might be defensible not to require a doctor to do something which conflicts with his medical scientific expertise, but surely different issues arise in relation to the kinds of social values community care is based upon. A patient can, theoretically, seek a second opinion whereas this is less feasible in the context of adult social care – unless somebody moves to a different authority. As Collingbourne has pointed out in this excellent article, there is a large amount of discretionary power involved in the administrative systems surrounding social care decision making, and the well-being principle underpinning the Care Act 2014 is similarly broad and subjective. Social care provision is also increasingly disparate, and decisions are shared and dispersed among different authorities and providers. The discussion around Para 35 by Glentworth DJ in MAG in relation to the exchanges between NYCC and the housing authority and resulting stalemate is testament to this. This is a very different context to that in which clinical decisions are made.
It is not difficult, therefore, to see how and why there may be a distinction to be drawn between medical and social care decisions. Yet it is important to question whether the ‘hands-off’ approach taken by the courts is defensible per se, regardless of the type of decision. It could equally well be argued that even in medical decision making, the discretion and power afforded to individual doctors is inappropriate, particularly when involving relatively power-less individuals such as those deemed to lack mental capacity. Challenging this, however, would necessitate a revisiting of the case of Burke which has entrenched the notion that a patient cannot demand a particular treatment be provided.
Looking ahead to the Supreme Court
One question that ought to be raised in this context is whether or not the interaction of these statutes, and the importance of it, was fully envisaged when the MCA was enacted. Whilst healthcare cases were common prior to the MCA, in more recent years there has been a growth in the number of welfare cases in the Court of Protection- see the Cardiff report here. These involve matters such as residence decisions, contact, marriage and capacity to consent to sex, and mean that Local Authorities are now involved in a much larger number of cases, particularly with regard to their role in providing community care services. The increased role of Local Authorities and welfare decisions in the Court of Protection may partly be explained as a result of the Deprivation of Liberty Safeguards, and the role of Local Authorities as supervisory bodies under these. Moreover, following the case of London Borough of Hillingdon v Neary  EWHC 1377 (COP), Jackson J advised that in disputes about serious welfare matters that could not be resolved by other means, these need to be referred to the Court of Protection by Local Authorities, to enable a speedy review of the lawfulness of detention (Paras 20-23 and 33). This was in response to concerns raised in the case, and elsewhere, that serious decisions impacting upon Art 8 of the ECHR (right to private and family life) could be taken without any real right to challenge this being available to Steven Neary or his family. The resulting increase in cases, given the onus on Local Authorities now to bring cases to the Court of Protection, has undoubtedly altered the nature of the issues that the judges sitting in the court are asked to decide.
As noted above, however, the interaction between the two statutes is of vital importance. They interlock in the context of many decisions regarding where a person should live, and/or how they should be supported in the context of local authority community care service provision, as well as adult safeguarding. Furthermore, focusing on the interaction between the Acts highlights the way in which they intersect with fundamental human rights issues, involving as they do complex questions which impact upon liberty, dignity, relationships, and the home. Traditionally, the MCA has been characterised as concerned with private law issues. Conversely, the law surrounding adult social care provision and eligibility has been seen as centering on public law issues and thus challengeable via judicial review. Yet this distinction is becoming increasingly difficult to defend. Decisions being made in relation to an individual deemed to lack capacity under the MCA will have a deep and pervasive impact on their ability to enjoy certain rights, and the services offered by local authorities will delineate the options considered in the analysis of the person’s best interests.
The distinction between matters deemed to be private law issues (such as consenting to treatment, or a particular care plan) and what is deemed to be a public law issue (the availability of services and allocation of resources) is stark in this context. What is striking, however, is the way in which this interaction between the legal frameworks seems to serve to disempower the individual at the centre, and there is no readily apparent mechanism by which they can challenge this. ‘Best interests’, in turn, is hollowed out as a concept and is in danger of being led by resource considerations- a far cry from common understanding of the phrase. This position is in stark contrast to the emerging legal and theoretical discourses around disability and legal capacity. The UNCRPD and discussions and developments surrounding this seek to question the traditional dividing lines between the public and the private, and the reach and obligations of the state towards citizens. At a time when the direction of disability rights discussion is progressive, these judgments have the potential to stagnate, or even reverse, the legal approach to those who are deemed to lack mental capacity.
In essence, these cases, whilst tending to focus on wrangling as to the legal processes and procedures, can be used to expose the profound disempowerment of the person at the centre. This is in stark contrast to the ostensibly ‘empowering’ ethos of the MCA. Questions of best interests can essentially be foreclosed and reigned in before a case gets to the Court of Protection by authorities limiting the options that they are willing to provide. This in turn hollows out the very meaning of the phrase ‘best interests’. To many, it would defy logic to say that crawling around your home on your knees, resulting in pain, discomfort and potential ill health, is in your best interests. Choosing ‘the lesser of two evils’ is a far cry from the wording of the statute, that a decision maker must act in a person’s best interests. This is not to pour scorn on local authorities, who are functioning and providing services in climate of savage cuts to their budgets. However, the role of the courts here is vitally important, and they can provide a voice for those who are otherwise disempowered by the system and can bring this reality into the public consciousness.
It is disappointing that the response from the judiciary thus far has been somewhat Nelsonian, and in many respects the judiciary have reasoned themselves into an impasse. In a fascinating extra-judicial article, ‘Protecting the rights of vulnerable and incapacitous adults – the role of the courts: an example of judicial law making’ (2014) CFLQ 26(1), Munby outlined the way in which the courts and judges have had an important role in developing the law in this context, and the direction of reasoning which has at times meant that judges have ‘backed themselves into a corner’, but also the way in which the judiciary have manoeuvred out of these corners. He ends by saying ‘the common law has shown a remarkable ability to adapt in dramatic ways over a very short period. Who can say what the future holds?’ It is hoped that the Supreme Court will engage in some clear reflection on these matters but also that they engage with the realities of the situation that a person deemed to lack capacity is placed in by this interaction between the legislative frameworks – the power relations that permeate this context, and the way in which decisions are made.