The limits of the Court of Protection’s jurisdictionCourt of Protection:jurisdiction:limits ofAdministrative Court:Court of Protection, andAdministrative Court(reproduced in full in appendix A)Court of Protection:jurisdiction:limits ofAdministrative Court:Court of Protection, andAdministrative CourtCourt of Protection:jurisdiction:limits ofAdministrative Court:Court of Protection, andAdministrative Court
24.3For the most part, a public body responsible for the wellbeing of the person concerned (whether in a medical context or in the context of their welfare more generally) will either bring proceedings to seek a decision from the court (especially in the safeguarding context: see further chapter 23) or is a party to the proceedings and is willing to abide by the result. However, there may be cases in which the public body has already taken a decision in discharge of its statutory functions, and the question then arises how that decision can appropriately be challenged. Alternatively, the public body may decide in the currency of Court of Protection proceedings that it does not wish to put before the Court a particular option for consideration. For instance, a local authority may contend that a placement to which P has been moved in discharge of its community care functions sufficiently meets their needs that they are not prepared to incur the substantially greater expenditure that may be required to allow them to move home. The question that then arises is as to the extent the Court of Protection is able to compel a public authority to discharge its statutory functions in a certain way or to make a specific funding decision. Put another way, how and when will parallel public law proceedings be required in such situations?
24.4Cases decided prior to the enactment of the MCA 2005 suggested that, in the event of an impasse of the nature described above, it would be necessary to proceed by way of judicial review in order to challenge the decision of the public authority.
1See, in particular, A v A Health Authority [2002] Fam 213 and Re S (Vulnerable Adult) [2007] 2 FLR 1095. In May 2015, the Court of Appeal confirmed in
Re MN2Re MN (Adult) EWCA Civ 411, [2016] Fam 87, (2015) 18 CCLR 521. that this remains the position. Sir James Munby P, giving the sole reasoned judgment of the court, held that:
80. 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.
81. The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. And in the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement. I agree with the point Eleanor King J made in her judgment (para 57):
‘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.’
24.5As discussed further at paras 25.5 onwards, there is one important caveat to this proposition that arises in cases where a proper claim can be framed based upon the Human Rights Act (HRA) 1998 that a public authority in declining to fund a particular form of care package is acting in a way incompatible with rights under the European Convention on Human Rights (ECHR).