Commissioning and the Court of Protection - the Supreme Court's decision in N v ACCG [2017] UKSC 22

"The jurisdiction of the Court of Protection is limited to decisions that a person is unable to take for himself ".

This relatively straightforward statement is the basis on which the Supreme Court has confirmed that the Court of Protection cannot be used to force commissioners or providers of care to come up with services or packages which they are unwilling or unable to offer. The court's role is simply to decide what is in a person's best interests from the available options; it's for the commissioner to determine what those available options are. This decision will provide some relief for commissioners and providers facing a challenging funding environment, in that the risk of them having to provide care packages produced off the back of litigation or experts instructed by lawyers has all but evaporated.

The background to the case was not unusual. MN had complex care needs and was placed in a care home. His parents wanted him to visit them at their home. Such a visit would require additional carers to be trained and paid to do so. MN's mother wanted to help with MN's intimate care. The care home was not willing to allow either request, so the CCG would (or could) not commission it. The dispute was put before the court to resolve, but the CCG argued that since it had made a decision not to fund or allow such care this was a public law matter, which the Court of Protection had no power to deal with. Any challenge to its decision should be by way of judicial review in the Administrative Court, which is generally a more difficult process to secure public funding for.

The counter-argument was that only once a decision is made as to what is in someone's best interests should the funding/commissioning options be considered. This is a common position in disputes in the Court of Protection. The problem with this approach is that it puts the cart before the horse. It would mean that the Court of Protection would be the forum for deciding what care provision should be made available, probably after several experts had given evidence in proceedings. This would then put a commissioner in the invidious position of having to implement a care package which had been decided to be in a person's best interests in the face of its own funding position, its policies or where it was likely to mean that other service users would face reductions in care provision.

The Supreme Court, along with the Court of Appeal and the Court of Protection in the earlier hearings, were clearly alive to this. What this judgment confirms is that the court can only make decisions for a person which he or she would make if capable. Just as a capable person cannot force a statutory authority to provide services which it cannot or will not provide, the Court of Protection cannot step in to do so either.

The judgment does not reduce the scope for argument about what can or should be provided. Disputes about whether a care package is in a person's best interests are still likely to arise, especially in the current financial environment and applications will be made to court. Crucially, the court said that:

 "What may often follow such an application will be a process of independent investigation, as also happened in this case, coupled with negotiation and sometimes mediation, in which modifications are made to the care plan and areas of dispute are narrowed, again as happened in this case. But it does not follow that the court is obliged to hold a hearing to resolve every dispute where it will serve no useful purpose to do so."

In other words, it will not be enough for a CCG just to say it will not provide a particular package. There will have to be some explanation which in turn will lead to argument and possible adjustments to the care package on offer. But as this judgment makes clear, that does not mean that every dispute should be litigated. The Code of Practice to the Mental Capacity Act makes it clear that the Court of Protection should be used as a measure of last resort, rather than the foundation for a discussion about care provision. The court here issued a reminder that parties to litigation should not rush straight to court to resolve any difference.

For now, this judgment is at least likely to prevent an increase in the use of the Court of Protection as a means of exerting pressure on public authorities but it is unlikely to reduce the amount or intensity of scrutiny of care packages put before the court.