Consideration of Court of Protection’s proper role where making decisions on behalf of those without capacity


Re: MN (Adult) [2015] EWCA Civ 411

The appellant suffered from profound disabilities and lacked capacity to make relevant decisions for himself. On his 18th birthday a clinical commissioning group (“ACCG”) took over responsibility from the local authority for the funding of the appellant’s care.

Before the Court of Protection, the appellant’s parents contended the ACCG ought to have facilitated contact at their home. However, the ACCG were not willing to fund the extra carers that would have been required to allow contact between the appellant and his parents in his parents’ home.

The Court of Protection held that it was not possible to facilitate contact in the parents’ home and that the Court ought not to embark on upon a best-interests analysis of contact at the parents’ home as a hypothetical possibility. The parents appealed.

The issues before the CA (Civ Div) were: (i) whether the Court of Protection could be prevented from reaching a decision as to what was in a patient’s best interests, whether under the Mental Capacity Act 2005 ss 15 or 16, because a commissioning body had decided not to commission or fund services; and (ii) whether the failure to conduct a full best-interests assessment in accordance with the principles of the Act had been a failure by the Court to conduct a full merits assessment, in breach of ECHR, arts 6 or 8.

Held: the appeal was dismissed. The Court noted that the Court of Protection was there to take decisions on behalf of an individual who the lacked the capacity to do so, it did not have the power to obtain resources or facilities from a third party that was not available to the incapacitated adult. The Court of Protection was confined to choosing between available options, and gave public policy reasons why the Court of Protection ought not to embark on an analysis of a hypothetical possibility.

Hugh Southey QC was involved in this case.