The scope of the Court of Protection and potential judicial review proceedings

Court of Protection

The Court of Protection has two primary powers of most relevance in cases concerning residence: firstly, to make a determination that the person lacks capacity to make decisions about his/her (i) residence and (ii) care and treatment needs. Secondly, to make declarations as to the person's best interests with regards to his/her (i) residence and (ii) care and treatment needs. The Court of Protection can also authorise any deprivation of liberty, which it considers is in the person's best interests.

With regards to the second primary power, the Court can only make a declaration as to which of the options that is placed before it is in the person's best interests. The Court cannot force any organisation to commission any particular care package. Whilst the Court can be creative in devising options that might not have been put forward by the parties, it cannot create options where none exist - the Court cannot order a public authority to provide a particular service unless there is a specific power to do so. In exercising the best interest jurisdiction under the Mental Capacity Act 2005, the Court is choosing between the available options.

It is not for the Court of Protection to:

• Make orders that amount to aspirational statements of what would be for the best in some ideal world which has little prospect of realisation;
  
• Conjure up resources where none exist;
• Order public agencies to provide particular services (unless there is a specific power to do so);
• Make orders that will be unworkable;
• Make orders as a means of putting pressure on a public authority to allocate its resources in a particular way, despite all of the other considerations which they have to take into account.

It is for the party that has responsibility and power to make decisions about the options, to provide details to the Court of what the actual commissioning options are. Essentially, before arriving at the doors of the Court of Protection in a final hearing, the commissioner has to have clearly set out to the Court and the parties, what packages of support it would or would not be prepared to provide and the other parties need to have given consideration as to whether or not, that decision is susceptible to a public law and/or Human Rights challenge.

In most cases, it is for the CCG (or other public authority commissioner as appropriate) to set out to the Court which care packages can be commissioned; this may be a number of alternative packages or it may only be one. This will depend upon the tendering and commissioning process that is undertaken and will be specific to the facts of each case.

Once the packages that will be commissioned have been identified, it may be the case in some matters that providers of care consider that it is inappropriate, impractical or impossible for them (or any other provider) to actually provide that package of care. Again, it is a matter for the individual provider to accept or refuse to provide a package of care. The Court cannot force any provider, or indeed any individual healthcare professional, to perform a particular package of care.

The Court of Protection is not the forum in which to challenge the validity of the CCG's decision as to whether or not to make a particular package of care an available option, or a provider's refusal to provide a package of care. The appropriate arena for that challenge is in the Administrative Court by way of Judicial Review.

Judicial review

This is a claim to review the lawfulness of a decision, action or failure to act in relation to the exercising of a public function. Judicial Review is the mechanism by which the decisions of a public body can be challenged on the grounds that they were:

1. Unreasonable (known as Wednesbury unreasonableness) and Irrational

Wednesbury unreasonableness is a concept developed in case law.  A decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever come to it. This is a different, and much stricter, test than simply showing that a decision was unreasonable.

The courts are very reluctant to find that a decision was Wednesbury unreasonable; this is particularly the case where the decision-maker is an expert, whose judgment the court would be unwilling to substitute with its own, save in the most exceptional case of blatant unreasonableness. The Court is very slow to impugn decisions made by experts unless they are fundamentally flawed.

Irrationality looks at whether a public body has either taken into account irrelevant matters, or fails to take into account relevant matters. It turns upon whether a consideration has been omitted which, had account been taken of it, might have caused the decision-maker to reach a different conclusion.

The court will afford the decision-maker a degree of latitude in assessing whether it has taken proper account of the relevant factors, recognising that, in the real world, when weighing up complex matters there will often be a grey area.

2. Illegality and Proportionality

This requires the decision-maker to have regard to the relevant law that regulates the decision-making power and give effect to it. Examples include (but are not limited to) the wrong person making a decision, fettering of discretion, misunderstanding a legal term/requirement, or where the decision has been made outside of the powers that the decision-maker has.

Further, a decision must be proportionate to the legitimate aim that it intends to achieve.

3. Procedurally Unfair

A decision is procedurally unfair if in the process of its making, the procedures prescribed by statute have not been followed. Procedural unfairness engages the principles of natural justice. This requires a decision-maker to follow any relevant statutory processes, undertake proper consultation in its decision making and provide reasons for its final determination.

It also encompasses a requirement that the decision was a "fair" one; what is fair in relation to a decision differs with each decision. Things that are likely to be taken into account include (but are not limited to) a real possibility of bias, right to a fair hearing (i.e. the subject of a decision is given an opportunity to put his/her view/position forward and this is properly taken into account) and legitimate expectation (which will arise when the person has been led to understand, from the decision-maker, that certain steps will be followed in reaching a decision).

Commonly, procedural fairness is likely to extend to consider whether the CCG has undertaken reasonable and proportionate investigations to identify potentially appropriate and suitable placements and potentially willing providers.

Bringing a claim in judicial review is a two stage process. Firstly, the Claimant must seek permission from the Court to pursue a claim in judicial review. This requires the Claimant to file with the Court and serve on any Defendant a statement of facts and grounds he/she relies upon in founding the challenge in judicial review. In normal circumstances, the Defendant has to acknowledge service of the Claim Form and serve a Defence within 21 days. Usually, the Court then considers the issue of permission on the papers (i.e. without a hearing) although any party can specifically request that permission be considered at an oral hearing.

In order for the Claimant to proceed with his/her challenge, the Court must grant permission. If permission is refused, the Claimant can request a review of the decision. If permission is granted, matters progress towards a fully contested hearing.

In some circumstances, usually where there is particular urgency for the judicial review to be considered, any party can request that the issue of permission and the substantive application (presuming that permission is granted) is dealt with at one hearing (known as a "rolled up" hearing). Essentially, at the beginning of the hearing, the Court determines the issue of permission. If granted, the hearing moves straight onto determining the substantive application (whereas usually that would be heard at a future hearing).

In considering whether to grant permission to pursue a claim in judicial review, the Court will consider:

• Time limits – a claim in judicial review must be brought within three months from the date in which the decision arose;
• The Claimant has to have a sufficient interest in the decision he/she is challenging;
• The Challenge must concern a public law matter and regard a decision made by a public body;
• Whether there is an arguable ground for judicial review?

If the Court accepts the Claimant's challenge in judicial review, it is likely that the outcome will be that the organisation is required to revisit its decision and remedy any illegality, irrationality, unreasonableness or procedural unfairness that has been identified in the decision-making process. It is open to the Court to substitute its own decision, by way of a mandatory order requiring the organisation to commission a certain package for example.  However in our experience this is a highly unlikely outcome. 

Implication in court of protection cases

As set out above, within any on-going Court of Protection proceedings, the Court is only able to make a declaration as to the person's best interests in relation to the available options (in terms of care package and placement) that the CCG (or other relevant commissioner) presents to it.

If the CCG refuses to commission any particular care package, that decision can be challenged by way of judicial review.

Many of the persons who are the subject of Court of Protection proceedings are publically funded (i.e. by way of the Legal Services Commission ("LSC")). The criteria for public funding underwent significant amendment in April 2013 and as a consequence, there is a higher threshold that the LSC applies before granting funding. Therefore, if the Official Solicitor (who frequently acts on behalf of people in Court of Protection proceedings) wished to bring a challenge in judicial review, he must persuade the LSC that it is appropriate to fund the challenge.

Any application for judicial review must receive permission from the Court. If a claim is brought against the CCG, the CCG will have the opportunity to put forward a defence and reasons why permission should be refused. It is likely that permission would be considered on the papers in the first instance.

It is not possible to prohibit or prevent any person from launching a claim in judicial review. This is neither within the gift nor power of the CCG or any commissioner. The best position for any commissioner to adopt is to ensure that the steps that it takes in determining its view on which options it will or will not commission is robust and will bear later scrutiny.

There are a number of proactive processes that any CCG/commissioner can undertake to increase the prospect of any judicial review that is brought being refused permission:

1. Clearly explain, at the outset of any discussions with interested stakeholders, the duties incumbent upon the commissioner to:
   1. utilise its resources and exercise its powers effectively, efficiently and economically for its wider commissioning population;
   2. satisfy itself that any package of care that it commissions is safe, sustainable, meets the needs of the individual and is financially viable – noting that it is likely to take the advice of specialist providers into account;
   3. comply with any requirements to process a proposed package of care through exceptional/high-cost funding panels;
2. Ensure that exceptional/high-cost funding panels are:
   1. established;
   2. founded upon clear, transparent and fair terms of reference, procedures and criteria;
3. Adopt reasonable and open investigations/explorations as to potential providers;
4. Keep all interested stakeholders fully informed on progress of the process of identifying potential providers – ensure it is approached in an open and transparent manner;
5. Include all interested stakeholders in discussions about appropriate tenders/criteria parameters;
6. Undertake a reasonable and proportionate process to identify potential providers, including consideration of embarking on a process of national commissioning (albeit on a limited scope);
7. Ensure that the procedure by which it considers any tender proposals is reasonable, rational, legal and procedurally fair;
8. If a potential provider refuses to provide a package of care, take reasonable steps to explore alternative potential providers;
9. Ensure that all decisions to either refuse to commission a package of care, or to explain that it has simply been impossible to commission a package of care, are clear, detailed and contain full reasons.