The approach of the Administrative Court(reproduced in full in appendix A):s1(5)Administrative Court:approach ofAdministrative CourtAdministrative Court:approach ofAdministrative CourtCourt of Protection:Administrative Court, andAdministrative Court:approach ofAdministrative Court
24.9It is of considerable importance to remember that the fact that a person lacks the capacity to decide (for instance) where they should live:
… does not import the test of ‘what is in her best interests?’ as the yardstick by which all care decisions are to be made … Section 1(5) of the Act applies to ‘an act done, or decision made … for or on behalf of a person who lacks capacity’. Its decision-making criteria and procedures are designed to be a substitute for the lack of independent capacity of the person to act or take decisions for him or herself. They come into play in circumstances where a person with capacity would take, or participate in the taking of, a decision.
1R (Chatting) v (1) Viridian Housing (2) Wandsworth LBC [2012] EWHC 3595 (Admin), [2013] COPLR 108 at paras 99–100 per Nicholas Paines QC sitting as a Deputy High Court Judge. This passage was endorsed by the Court of Appeal in Re MN (at para 24).24.10In other words, very many decisions relating to the provision of care by public bodies to adults lacking capacity to take material decisions are not, on a proper analysis, best interests decisions falling within the scope of the MCA 2005. Rather, they are decisions taken as to (1) what the adult’s needs are; and (2) how those needs are to be met. They are decisions taken by reference to substantial bodies of legislation and of case-law that apply to all adults, not just those who lack capacity in one or more regards;
2See eg (for England) Stephen Knafler QC, Adult Social Care Law, LAG 2016 and Tim Spencer-Lane, Care Act Manual, Sweet & Maxwell, 2nd edition, 2015. they are therefore precisely the sort of decisions that have conventionally fallen – and continue to fall – to be decided in the Administrative Court by reference to the well-developed tests that apply when that court is considering whether the public bodies in question have erred in their decision-making.
24.11Space precludes a detailed discussion here of the tests that apply in judicial review proceedings,
3See, in this regard, in particular, Jonathan Manning, Sarah Salmon and Robert Brown, Judicial review proceedings: a practitioner’s guide, LAG, 3rd edn, 2013. but it is important to note that the crucial distinction between the approach of the Administrative Court and the approach of the Court of Protection is that the former is (broadly) focused upon the process by which the public body has taken the decision in question; the latter is, itself, the decision-maker and will therefore engage in a detailed examination of the merits of the various options before it. This hard-edged distinction can appear to be blurred in certain categories of cases, in particular those requiring the assessment by the Administrative Court of the proportionality of any interference with rights under the ECHR, but even in such cases the Administrative Court will not, formally, be conducting a review of the merits of the decision and will not therefore be standing in the shoes of the decision-maker.
4See R (A) v Chief Constable of Kent [2013] EWCA Civ 1706; (2014) 135 BMLR 22.