9.102Re MN (An Adult) [2015] EWCA Civ 411, (2015) 18 CCLR 521
The Court of Protection has no power to require a public authority to provide different services, only to consider whether services on offer are in P’s best interests, so any legal challenge to the sufficiency of services offered must be brought by way of judicial review
Facts: MN was a severely disabled young adult. It was reluctantly conceded by his parents that it was in his best interests to live in a residential placement but they disputed that the package of care on offer was in MN’s best interests and asked the Court of Protection (COP) to investigate and make a declaration on that issue. The COP declined to take that course on the basis that its role was limited to determining whether care packages actually on offer were in P’s best interests. MN’s parents appealed.
Judgment: the Court of Appeal (Sir James Munby (President), Treacey and Gloster LJJ) dismissed the appeal, holding that that the COP had no power to require a public authority to provide a different care package, only to consider whether what was on offer was in the best interests of P; if P or some other person wanted to secure change in the care package, then they had to bring judicial review proceedings. Accordingly, it was pointless and inappropriate for the COP to embark upon an investigation on whether a different care plan would be in P’s best interests:
11. The starting point, in my judgment, is the fundamentally important principle identified by the House of Lords in A v Liverpool City Council [1982] AC 363 and re-stated by the House in In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791. For present purposes I can go straight to the speech of Lord Scarman in the latter case. Referring to A v Liverpool City Council, Lord Scarman said (page 795):
‘Authoritative speeches were delivered by Lord Wilberforce and Lord Roskill which it was reasonable to hope would put an end to attempts to use the wardship jurisdiction so as to secure a review by the High Court upon the merits of decisions taken by local authorities pursuant to the duties and powers imposed and conferred upon them by the statutory code.’
He continued (page 797):
‘The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.’
12. Lord Scarman was not of course disputing the High Court’s power of judicial review under RSC Ord 53 (now CPR Pt 54) when exercised by what is now the Administrative Court: he was disputing the High Court’s powers when exercising in the Family Division the parens patriae or wardship jurisdictions. This is made clear by what he said (page 795):
‘The ground of decision in A v Liverpool City Council [1982] AC 363 was nothing to do with judicial discretion but was an application in this field of the profoundly important rule that where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to RSC Ord 53: but no abuse of power has been, or could be, suggested in this case.’
It is important to appreciate that Lord Scarman was not referring to a rule going to the exercise of discretion; it is a rule going to jurisdiction.
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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 A v Liverpool principle applies as much to the Court of Protection as it applies to the family court or the Family Division. The analyses in A v A Health Authority and in Holmes-Moorhouse likewise apply as much in the Court of Protection as in the family court or the Family Division. 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.
Comment: there seems to be no reason why a complaints process, or judicial review proceedings challenging a service provision decision, cannot be run in tandem with COP proceedings or, even, why a High Court judge entitled to sit in the Administrative Court and COP should not determine both the public law and best interests issues, providing that he or she carefully separated the different functions being exercised. All that this case decides, reflecting earlier case-law, is that one cannot use the best interests jurisdiction to ‘get around’ the limits of judicial review. The Supreme Court granted permission to appeal, with the appeal to be heard on the 14 and 15 December 2016, on the issue of whether a local authority decision about care services deprives the COP of jurisdiction to declare what services would be in P’s best interests.