SWALA’s second meeting took place at the offices of Clarke Willmott on 5th March 2015.

The topic under discussion was the interface between the jurisdictions of the Court of Protection and the Administrative Court in best interests decision-making.

Taking a case study of P, an elderly and incapacitous care home resident who was deprived of her liberty, the panel of Polly Sweeney of Irwin Mitchell, Gabriel Beeby of Guildhall Chambers and Jess Flanagan of Clarke Willmott explored both jurisdictions’ remit in the face of a refusal by a local authority to fund an expensive home care package.

The first question was whether the COP would declare any such care package to be in P’s best interests if it were not an option ‘on the table’? Polly précised the discussions in A Local Authority v PB & P [2011] EWHC 2675 (CoP) and ACCG & Anor v MN & Anor [2013] EWCOP 3859, concluding that it would not. The COP is not tasked to provide P with an ideal, but rather to choose from the available options before it. This reflects the limited powers of any capacitous person to persuade a local authority to provide them with a given package, and the maxim that the COP has no greater power on P’s behalf than that. Although it seems settled that the COP will refuse invitations to trespass into public law territory here, satellite JR would be problematic for P in several procedural respects: permission, funding, cost, time, to mention a few.

Gabriel then discussed P’s situation from the Admin Court’s perspective. If the decision not to fund could be described as irrational or Wednesbury unreasonable, it was challengeable. It was important to identify such jurisdictional issues early in the COP proceedings. What then was the appropriate test in a case where P’s Article 5 and 8 rights could be at issue? Picking up on Mr Justice Hickinbottom’s fascinating discussion of anxious scrutiny at our inaugural meeting (The Administrative Court – The Next Step), the authorities tended to the view that there would be some investigation of proportionality, and therefore the merits, of the decision in P’s case. By analogy with Judicial Review of decisions affecting vulnerable children and community care provision, there would be a ‘heightened’ or ‘intensified’ review. Looking at the relationship of the two courts, if a claim for JR was granted after a best interests decision is taken, the COP’s conclusion on that would not bind the Admin Court. In Chatting v Viridian Housing & LB Wandsworth [2012] EWHC 3595 (Admin) where a housing association had given weight to an best interests declaration when later ceasing to make provision that would give it effect, it was held that acting contrary to a Claimant’s declared best interests would not alone vitiate the decision.

Finally, Jess noted how the limited COP jurisdiction allowed LAs presenting the court with a single option, essentially to determine the outcome in advance. She explored practical ways in which P might be able to overcome the cumbersome route necessitated by the ‘best interests first, JR second’ approach. If asked at an early enough stage a COP Judge might be willing to nudge public authorities to investigate other options. Moreover, in line with Mrs Justice King’s remarks in ACCG the COP should widen their enquiry into ‘hypotheticals’ where a party’s fundamental rights are engaged and arguments as to infringement are pleaded under s7(1)(b) HRA 1998. In those cases the court may choose exceptionally, in order to assess the proportionality of the decision, to conduct a best interests analysis which includes hypothetical options.