A significant ruling by Lady Hale yesterday in the Supreme Court is being reported and commented on today, which (if I understand correctly) will have significant impact on how the Court of Protection undertakes its role in future.
The most important article has appeared here on the Court of Protection Handbook website under the headline “Best interests, available options, and case management before the Court of Protection – the Supreme Court pronounces”.
In very basic terms, Lady Hale considered the question: “How, then, should the court reconcile its duty to decide what is in the best interests of the person (P) with the fact that it only has the power to take a decision that P himself could have taken?”
and this is how her pronouncement is described: “Lady Hale made clear… this meant that it (the court) had to choose between the available options, and its powers were (in this respect) similar to the family court’s powers in relation to children… Service-providing powers and duties – including those under the Care Act 2014 – have their own principles and criteria which do not depend upon what is best for the service user, although such would no doubt be a relevant consideration. She noted, in particular, that whilst decisions on health or social care services may engage the right to respect for private (or family) life under Article 8 ECHR, decisions about the allocation of limited resources may well be justified as necessary in the interests of the economic well-being”.
The authors of the Court of Protection Handbook article commented:
This decision put beyond doubt the limits of both the Court of Protection and, more broadly, what can be done in the name of best interests. As Lady Hale has made so starkly clear, a decision as to what is in the person’s best interests is a choice between available options. This means in practice, and all too, often a constrained choice where a person is wholly or partially reliant upon public funding to meet their care needs. However, Lady Hale made clear that the approach that she was setting out was one that had always been intended from the very earliest work of the Law Commission…
As regards the role of the Court of Protection, it is now clear beyond peradventure that the court should be in the driving seat as regards the management of cases that come before it, and we hope also that this judgement fortifies the court in taking the robust case management steps set down in the Case Management Pilot. We will certainly not be changing our advice that any person, and in particular any public body, appearing before the court can expect to have their decision-making probed robustly, especially where the consequences of those decisions are such as to remove from the table options which it is clear P would wish to be able to choose.
I’ve just seen a Tweet by a legal expert on Lady Hale’s ruling “Important clarity as to the powers of the CoP to order LAs to fund care packages. The judgement is a model of clarity and conciseness.”. Hmmm not for this lay-person – I’m still trying to digest it and work out its implications, and will keep you updated as future analyses are published