Neutral Citation Number: [2015] EWCA Civ 411
Case No: B6/2013/3729
B6/2013/3747
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
Mrs Justice Eleanor King
[2013] EWHC 3859 (COP)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 7 May 2015
Before :
SIR JAMES MUNBY PRESIDENT OF THE COURT OF PROTECTION
LORD JUSTICE TREACY
and
LADY JUSTICE GLOSTER
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In the matter of MN (Adult)
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Ms Kerry Bretherton (instructed by Dollman & Pritchard) for the first appellant Mr N
Ms Aswini Weereratne (instructed by Scott-Moncrieff & Associates) for the second appellant Mrs N
Mr Hugh Southey QC and Ms Fiona Paterson (instructed by Weightmans LLP) for the first respondent ACCG
Mr Alex Ruck Keene (instructed by Steel & Shamash) for the third respondent MN (by the Official Solicitor)
The second respondent ACC was neither present nor represented
Hearing dates : 16, 18 December 2014
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Approved Judgment
Judgment Approved by the court for handing down. / Re MN (Adult)Sir James Munby, President of the Court of Protection :
Judgment Approved by the court for handing down. / Re MN (Adult)1. This is an appeal from a decision of Eleanor King J, as she then was, sitting in the Court of Protection on 20 November 2013. The judge refused permission to appeal. Permission was also refused by Macur LJ on the papers on 21 February 2014 but was granted, on renewal, by Floyd LJ at an oral hearing on 25 June 2014: ACCG and anor v MN [2014] EWCA Civ 1176.
The background
2. The facts are fully set out in Eleanor King J’s judgment: ACCG and another v MN and others [2013] EWHC 3859 (COP), [2014] COPLR 11. Her judgment also appears on the BAILII website, where it is publicly available, free, to all. For present purposes a very brief summary suffices.
3. MN, born in 1993, is a young man who suffers from profound disabilities and lacks capacity to make relevant decisions for himself. When MN was 8 years old he was made the subject of a care order on the application of the local authority, ACC. Shortly before his 18th birthday the court approved MN’s move from his residential children’s placement to an adult residential placement, RCH, where he continues to live. The clinical commissioning group, ACCG, took over responsibility from ACC for the funding of MN’s placement at RCH when he turned 18. The present proceedings were brought by ACC and commenced on 25 August 2011. MN’s parents, Mr N and Mrs N, accept, reluctantly, that MN should live at RCH, where they have regular contact with him, but their aspiration remains that he should return to live with them at home.
4. By the time the matter came on for hearing before Eleanor King J, the issues had narrowed to disputes (i) as to whether Mrs N should be permitted to assist in MN’s intimate care when visiting him at RCH and (ii) as to whether contact should also take place at Mr and Mrs N’s home. As to (i), RCH was not willing for this to be done. As to (ii), ACCG was not willing to provide the necessary funding for the additional carers who would be needed if MN was to have home contact.
5. Mr and Mrs N contended that the judge should embark on a contested ‘best interests’ trial in relation to both issues. The judge summarised ACCG’s position as follows (paras 20-21):
“[20] The ACCG’s case is that in a welfare case such as the present, the court is limited to choosing between the available options. It does not, they submit, have the power to order the applicant to produce other options, although it may make inquiries of the first applicant of other potential options. There is, say ACCG, only one residential package which it is prepared to fund. It is clear, they submit that the most recent offer of contact (unrestricted at RCH plus once a month in the community), affords the parents ample opportunity to see MN. The provision offered they submit, discharges their statutory duties towards MN. The ACCG fund one visit each week and the visit into the community.
[21] It follows that the ACCG’s case is that they will not fund contact at the parents’ home and contact there is not therefore an available option in this case.”
6. The judge was alert to what she described (para 34) as the:
“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.”
7. After hearing full legal argument, the judge concluded (para 87) as follows:
“In all the circumstances, I accept the submission of ACCG that contact at the family home is not an available option now or in the foreseeable future and that the court should not now embark upon a best interests analysis of contact at the parents’ house as a hypothetical possibility. Looking at the care plan and taking into account all matters set out in s 4 MCA 2005 I am satisfied that the contact programme put forward by ACCG and approved by the Official Solicitor is in his best interests.”
8. Both Mr and Mrs N – separately – appeal. I will come to consider their grounds of appeal in more detail in due course, but essentially they challenge the correctness in law of the judge’s approach.
9. The appeal raises fundamental questions as to the nature of the Court of Protection’s jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient’s family.
10. I turn therefore to the law.
The law
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.
13. It follows from this that a child, even if a ward of court, has no special privileges, nor has the family court any power to obtain for a child access to resources which would not otherwise be available. As Millett LJ, as he then was, put it in In re R (Wardship: Restrictions on Publication) [1994] Fam 254, 271, “the wardship court has no power to exempt its ward from the general law, or to obtain for its ward rights and privileges not generally available to children who are not wards of court.” The same point was made by the House of Lords in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413, a housing case. As Lord Hoffmann said (para 8):
“A child may have needs which a parent cannot meet. It may be in the interests of a child to reside for substantial periods with his father if the father has suitable accommodation. If he has not, the court has no power under the 1989 Act, whether in exercise of its public or private jurisdiction, to conjure such accommodation into existence.”
14. Exactly the same principle applies in relation to an incapacitated adult. As Baroness Hale of Richmond said in Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67, [2014] AC 591, para 18:
“This Act [the Mental Capacity Act 2005] is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full capacity.”
She added:
“Of course, there are circumstances in which a doctor’s common law duty of care towards his patient requires him to administer a particular treatment, but it is not the role of the Court of Protection to decide that. Nor is that court concerned with the legality of NHS policy or guidelines for the provision of particular treatments. Its role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself.”
She returned to the point (para 45):
“The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want.”
15. Drawing on this jurisprudence, in A v A Health Authority and Another; In Re J (A Child); R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, para 53, I summarised matters thus:
“It is clear that the court exercising its powers under the inherent jurisdiction cannot compel an unwilling private organisation or other outside party to provide a ward of court with education: In re C (A Minor) (Wardship: Jurisdiction) [1991] 2 FLR 168 (independent school refusing to admit ward of court). The position must be the same in relation to the provision of other services or facilities, for example accommodation. In my judgment the court exercising its private law powers under the inherent jurisdiction can no more compel an unwilling public authority than it can a private organisation or other outside party to provide care and attention to a child (even if the child is a ward of court) or to an incompetent adult. If it is to be said that a public authority is in some different position because it is a public authority then the answer in principle must surely be that this raises matters of public law to be determined, if not in public law proceedings, then at the very least by reference to the principles of substantive public law” (emphasis in original).
16. I illustrated the point by an example (paras 91-93):
“91 … Suppose that the question is whether or not a child should have potentially life-saving heart surgery. And let us suppose that on this central issue there is a dispute between the child or her parents on the one hand and the NHS hospital providing the treatment on the other. By what test is the dispute to be resolved? Is the determining criterion to be the judge’s perception of what is in the child’s best interests? Or something else? The answer, in my judgment, is that it all depends on the precise nature of the dispute between the parties and on what precisely it is that the judge is being asked to do.
92 If the NHS hospital is willing to provide the treatment, and the only obstacle to the operation going ahead is the refusal of the child or her parents to give the necessary consent, then the matter will be decided by the judge applying the best interests test. Notwithstanding that the NHS hospital is a public authority operating within the statutory framework of the National Health Service Act 1977 the dispute contains no public law element. It is one wholly within the realm of private law. It should accordingly be resolved in the Family Division in what can conveniently be called private law proceedings (whether brought under the inherent parens patriae jurisdiction or under Part II of the Children Act 1989 being neither here nor there) and by reference to the usual Family Division best interests test.