Introduction
23.1What follows is intended to amount to a brief guide, limited to those aspects of mental capacity law that intersect with adult social care, which occurs most often:
•when local authorities assess needs and make care planning decisions;
•when local authorities discharge their safeguarding functions (see also chapter 24, Safeguarding adults, below); and
•when there is a dispute over ordinary residence (see also chapter 12, ‘Ordinary residence/adults lacking capacity’, above).
23.2When local authorities assess needs and make care planning decisions, they are required to take specific steps and, in general, do all they reasonably can to ensure the effective involvement of adults, and on behalf of adults who lack capacity to make decisions about their care, or experience difficulty in so doing, and of persons acting on their behalf: see the statutory provisions at para
23.11 and para
23.12 on assessment and care planning.
23.3When an adult lacks capacity to decide a certain matter, decisions are taken on behalf of that adult, in their best interests. However, a local authority cannot be compelled to provide all the care and support that it is in the best interests of an adult to receive. For example, if a local authority assesses an adult lacking capacity as not having an ‘eligible need’ for a particular service, and decides not to exercise its power to provide that service, the adult cannot obtain that service on the ground that it is in his or her ‘best interest’ to receive it. His or her only remedy is to:
•seek a review of the merits of the decision through the statutory complaints procedure (or the forthcoming appeal procedure – see para
7.97, above); or to
•seek a review of the lawfulness of the decision, in public law terms, through judicial review.
1Re MN (An Adult) [2015] EWCA Civ 411, (2015) 18 CCLR 521. 23.4That applies, even when there is a dispute between a local authority and family members about whether an incapacitated adult should leave the family home and go to live in (for example) supported housing, or a care home. The court is required to decide whether it is in the adult’s best interests to live in accordance with the care package proposed by the local authority in the supported housing/care home, rather than in the family home, together with whatever care package may be offered there. The court may (if it considers it to be appropriate) examine, comment, advise or even exhort; but it is not entitled to require the local authority to provide a package that meets the adult’s best interests in a better way, either in the proposed supported housing/care home, or in the family home. Only judicial review can achieve that (or use of the complaints process and, in future, any appeal process).
2Re MN (An Adult) [2015] EWCA Civ 411, (2015) 18 CCLR 521.23.5It is difficult to imagine an incapacitated adult having a need for care and support that is not an ‘eligible need’, when the care and support in question is needed in order to avoid the adult suffering a deprivation of liberty that it is not in his or her best interests to experience. However, should it come to it, a local authority must always provide care and support so far as necessary to avoid a breach of ECHR rights. Accordingly, hypothetically at least, a local authority may need to provide different/additional care and support services to avoid an adult being deprived of their liberty in breach of Article 5 ECHR in circumstances where, without that care and support, the adult will experience a deprivation of liberty that is assessed to be incompatible with their best interests:
•accordingly:
5.22 … If the best interests assessor concluded that the proposed or actual deprivation of liberty was not in the relevant person’s best interests, the managing authority, in conjunction with the commissioner of the care, will need to consider how the care plan could be changed to avoid deprivation of liberty. (See, for example, the guidance on practical ways to reduce the risk of deprivation of liberty in paragraph 2.7.) They should examine carefully the reasons given in the best interests assessor’s report, and may find it helpful to discuss the matter with the best interests assessor. Where appropriate, they should also discuss the matter with family and carers. If the person is not yet a resident in the care home or hospital, the revised care plan may not involve admission to that facility unless the conditions of care are adapted to be less restrictive and deprivation of liberty will not occur.
23.6It will be, however, very unusual for inadequate accommodation and/or care to result in a breach of rights under the ECHR; even more unusual for that to justify a refusal to authorise a deprivation of liberty and wrong in principle for the court to deploy such considerations in order to pressurise a local authority into reaching different public law decisions.
4North Yorkshire CC v MAG and GC [2016] EWCOP 5.23.7When local authorities discharge their safeguarding functions, one option that they may exercise, is to bring proceedings in the Court of Protection aimed safeguarding the incapacitated adult and/or resolving disputes about how the adult should be cared for (see chapter 24, Safeguarding adults, below).