N v A Clinical Commissioning Group and Others
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Wilson,Lord Reed,Lord Carnwath,Lord Hughes |
| Judgment Date | 22 March 2017 |
| Neutral Citation | [2017] UKSC 22 |
| Date | 22 March 2017 |
| Court | Supreme Court |
[2017] UKSC 22
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Carnwath
Lord Hughes
Appellant
Kerry Bretherton QC
Neil Allen
(Instructed by Dollman & Pritchard)
Respondent (1)
Hugh Southey QC
Fiona Paterson
(Instructed by Hill Dickinson LLP)
Respondent (2)
Richard Gordon QC
Alexander Ruck Keene
(Instructed by Steel and Shamash Solicitors)
Respondent (3)
Aswini Weereratne QC
Sophy Miles
(Instructed by Scott-Moncrieff & Associates Ltd)
Heard on 14 and 15 December 2016
(with whom Lord Wilson, Lord Reed, Lord CarnwathandLord Hughesagree)
The Mental Capacity Act 2005 established a comprehensive scheme for decision-making on behalf of people who are unable to make the decision for themselves. The decision-maker — whether a carer, donee of a power of attorney, court-appointed deputy or the court — stands in the shoes of the person who is unable to make the decision — known as P — and makes the decision for him. The decision has to be that which is in the best interests of P. But it is axiomatic that the decision-maker can only make a decision which P himself could have made. The decision-maker is in no better position than P. So what is the decision-maker to do if he has reached the conclusion that a particular course of action is in the best interests of P but the body who will be required to provide or fund that course of action refuses to do so? Specifically, what is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make the decision for himself and members of his family about what should be provided for him?
MN is a profoundly disabled young man, born in November 1993, so now in his early twenties. In the words of the trial judge, Eleanor King J, at [2013] EWHC 3859 (COP), [2014] COPLR 11, para 6, he has
"severe learning and physical disabilities together with autism and an uncommon epileptic condition resulting in frequent seizures and risk of sudden death. A nurse has to be available at all times to administer emergency drugs to MN if the need arises. MN had poor muscle tone and uses a wheelchair. He is doubly incontinent. MN has the cognitive ability of a child aged less than 1 year. He has no speech but can express his feelings by facial expression, sounds and gestures. MN needs help with feeding as he is vulnerable to choking; he requires 2:1 care with his personal care and accessing the community. Overall MN has to have his carers nearby at all times and during the night MN has one sleeping member of staff and one member of staff who stays awake to look after him."
MN is one of six siblings. He has two brothers, BN and DN, who are also profoundly disabled and live in residential care. He has two sisters who continue to live with their parents and another brother who lives independently. As Bracewell J put it in care proceedings in the Family Division:
"To care for three such children, requiring constant 24 hour supervision is a Herculean task which this family as a team has undertaken with love and total commitment. The closeness of the family is striking. The physical care and attention to safety has been exemplary. All the family have been involved with every aspect of minute by minute care and supervision. There is no doubt that love and commitment have been shown to these children to the highest degree."
Nevertheless, despite these heroic efforts, the family were unable to cater for all their children's needs, nor were they able to co-operate with the authorities in doing so. Hence the need for care proceedings. A care order was made in respect of MN in December 2001 when he was just eight years old. Bracewell J found that his father had a long history of obstruction of professionals, of refusal to co-operate with authority and of being intimidating to anyone with whom he disagreed. At its height, he received a custodial sentence for assaulting a social worker. An application to discharge the care order was refused in July 2005 when MN was 11. Bracewell J found that history had repeated itself in the intervening years.
Accordingly, MN was still in the care of the local authority in August 2011. He was due to reach the age of 18 in November 2011, on which date the care order would come to an end (Children Act 1989, section 91(12)). The local authority, predicting that the parents would not see eye to eye with the authorities about what would then be best for MN, issued proceedings in the Court of Protection, seeking orders that:
(1) MN reside in such accommodation and receive such education and care as directed by the local authority.
(2) MN's contact with his mother, father and other family members be regulated by the local authority and be supervised by such persons when appropriate as the local authority directed.
On MN's 18th birthday, responsibility for his care was taken over by the National Health Service, now the local Clinical Commissioning Group ("CCG") responsible for commissioning care for him. MN has been assessed as having a "primary health need" (under regulation 21 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, SI 2012/2996). Two days later, with the permission of the Court, he moved to the residential care home where he now lives.
It was not in dispute that MN lacks the capacity both to conduct this litigation and to make decisions about his residence, education or the arrangements for his care or contact with his family. Declarations to that effect have been made by consent. He is represented by the Official Solicitor in these proceedings. The Official Solicitor instructed an independent social worker to report on MN's best interests in respect of his residence, care, education and contact. The social worker has produced three reports in the course of these protracted proceedings. His position since 2011 has been that the care home where MN lives provides "a safe, settled and supportive environment" for him. The parents have "for the time being" accepted that this is where he should stay, although it is clear that their ultimate aim is for him to come and live with them. Despite their difficulties in working with MN's father and mother, the care home has instigated much more relaxed arrangements for contact with MN. At the time of the hearing before Eleanor King J, the plan was that, providing they gave the home one hour's notice (as did the families of all the other residents), they could visit whenever they chose during the day. There are also periodic meetings at a café and arrangements for him to meet his brothers BN and DN, who are also in residential care.
Thus, by the time of the hearing, the issues between the CCG and the parents had narrowed to two. First, the parents wished for MN to come and visit them in their home, some six miles away from his care home. An occupational therapist had assessed the home and concluded that it could accommodate MN and his wheelchair for a short visit. But trained carers would have to go with him, be allowed into the home to settle him down, and wait outside while he was there (the parents have been reluctant to allow professionals into their home). One of the carers would have to be trained to administer emergency medication if required. Only the care home manager and her deputy were willing to do this, "the rest of her staff fearing that the parents would not co-operate, would interfere with the care they provided for MN and would be aggressive and intimidating towards them". Hence the care home was unwilling to facilitate MN's visits to the family home, which would therefore require alternative carers to be trained and paid to do so.
Second, MN's mother wished to be allowed to assist the care home staff with his intimate care when she was visiting him there. The independent social worker thought that MN's interaction with his mother in this way could form an important element in his quality of life, provided that she was able to work with the staff. Once again, the care home was not willing to allow this. This was due partly to fears as to the mother's co-operation but also because the parents had declined an offer of the necessary training in manual handling. MN is a grown man whose limbs can "thrash around", particularly if he has a fit, which can happen at any time without warning.
The final hearing of the application, initially made by the local authority but now maintained by both the CCG (as lead applicant) and the local authority, was listed for three days in November 2013. Voluminous evidence — no fewer than 2,029 pages, including 1,289 pages of expert evidence, contained in five lever arch files — and position statements had been filed. The independent social worker was due to attend. The CCG had written in October making its final proposals for contact between MN and his family. The CCG's position was that it was not in MN's best interests for his mother to be involved in his personal care or for him to have visits to the family home. The staff were unwilling to facilitate this and the CCG was not prepared to fund alternatives. The Official Solicitor, for MN, supported the CCG's position. The parents disputed their position and the reasons for it. In particular, they claimed that the care home's fears about lack of co-operation were unwarranted and that the mother was now prepared to undergo the necessary training.
At 11.32 pm on the day before the hearing was due to begin, counsel for the local authority emailed the other parties to give notice of her intention to argue that the Court of Protection had "no jurisdiction"...
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