On 22 March, the Supreme Court handed down a much anticipated judgment on N v A CCG, on the relationship between resource allocation decisions and best interests - can the court be asked to make best interests decisions where a public body is unwilling to fund the option being sought? Watch to hear Ben give a short summary of the judgment. For more information about our upcoming webinars please refer to the list beneath this video.
Here is a transcript of the information Ben shares in this video.
BT Ben Troke
On 22 March 2017, the Supreme Court handed down its third judgment on a case involving the Mental Capacity Act, and like the previous two, the lead judgment has been given by Baroness Hale. This case is called N versus A CCG, and it involves a young man in his early 20s, but with the cognitive ability of a child less than one years old. There was no argument that he lacked the capacity to make his own decisions about his medical care, his treatment or where he should live, and consensus had emerged, over time – though his family had initially wanted him at home with them – that he was appropriately placed, in his best interests, in a specialist care home, by the CCG that had been responsible for funding his care from the age of 18.
By the time this case got to a court hearing, the argument had narrowed to just two issues. His parents wanted home visits for him, and the CCG was not prepared to fund the specialist carers in addition to his package to make that possible. And secondly, when visiting him at his placement, his mother wanted to be involved in his intimate care, and the care home were not willing to facilitate this, out of concerns about the mother's cooperation and her refusal to have some training.
The case comes to court, then, on the issue of the Court of Protection's role in making best-interest decisions for things which aren't available because somebody isn't willing to do it or somebody isn't willing to pay for it. Baroness Hale, giving a single judgment of the Supreme Court, upheld the first-instance judge and the Court of Appeal in rejecting the parent's arguments. The Court of Protection does not exist to deal with hypothetical questions. What the parents wanted was simply not available, and so there is no point having an argument about whether or not it was in this young man's best interests. It simply wasn't being made available.
The Court of Protection's jurisdiction does not exist to be used to apply undue pressure on public bodies to make more available than would otherwise be the case. Judicial review is the proper process to scrutinise resource-allocation decisions. Public bodies will be very reassured to hear what looks like a very common-sense judgment that reflects the core of the Mental Capacity Act. The MCA is about enabling a person to make a decision for themselves where they can do, so it depends what is actually available to that person. The Court of Protection, like any other best-interests decision-maker, is in no better a position than the person themselves would have been. Best-interest decisions can only be made among actual available options.