"So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the 'available options'."
N v ACCG  UKSC 22,  MHLO 11
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
N v A Clinical Commissioning Group and others
[On appeal from In re N (An Adult) (Court of Protection: Jurisdiction)]
2017 March 22
Baroness Hale of Richmond DPSC, Lord Wilson , Lord Reed , Lord Carnwath ,Lord Hughes JJSC
Mental disorder — Court of Protection — Powers — Public authority declining to commission or fund care package sought by parents of incapacitated adult — Parents seeking declaration from Court of Protection that package in incapacitated adult’s best interests — Court refusing to hold best interests inquiry as serving no useful purpose given lack of power to order public authority to provide sought-after package — Whether refusal properly within court’s case management powers — Mental Capacity Act 2005 (c 9), ss 15, 16
N, a person with severe learning and physical disabilities requiring the constant attendance of carers, had been in the care of a local authority since the age of eight. An application by his parents to discharge the care order was refused by a judge, in part because of the father’s non-cooperation with care staff. On N’s 18th birthday responsibility for his care passed to his local clinical commissioning group (“CCG”) who placed him in specialist residential care. In proceedings commenced by the local authority in the Court of Protection but continued by the CCG after it assumed responsibility for N’s care, the CCG sought orders under section 16 of the Mental Capacity Act 2005 that N should reside in such accommodation and receive such care as it directed and that his contact with family members be regulated and supervised where appropriate. It was not in dispute that N lacked the capacity to make decisions about his residence or contact with his family, nor that the proposed residential accommodation would provide a safe and settled environment for him. A dispute arose, however, between N’s parents and the CCG over the latter’s refusal to provide or fund the care package preferred by the parents, which would have entailed visits by N to the family home, requiring the buying in and specialist training of additional carers. The parties prepared for a fully contested best interests determination on the parents’ preferred care package, but at the start of the hearing the CCG argued that the Court of Protection had no “jurisdiction” to conduct a best interests hearing when the sought-after option could not be imposed on the public body, given that the CCG’s decision had been a public law decision which could only be challenged by way of judicial review. The judge accepted the CCG’s argument and declined to embark on the best interests hearing and, being satisfied that the care package proposed by the CCG was in N’s best interests, made orders implementing that package. On appeal by the parents the Court of Appeal, dismissing the appeal, upheld the judge’s orders.
On the father’s further appeal—
Held, appeal dismissed. Where a dispute arose as to the care of a person lacking capacity so as to necessitate an application to the Court of Protection, the court had power under section 15 of the Mental Capacity Act 2005 to make a declaration as to the lawfulness or otherwise of any proposed decision to be made in relation to that person and, by section 16 of the Act, to make that decision on his behalf by way of order on such terms as it considered to be in the person’s best interests, taking into account, so far as practicable, his individual characteristics, likes and dislikes, values and approach to life. Rather than granting a declaration under section 15, it would usually be better to grant any relief by way of an order under section 16. The court, however, had no greater power to oblige others to do what was best than the person would have had himself if he had capacity and so could only choose between such options as would have been available to the person. It followed that if a party to the dispute which led to the application were seeking a best interests decision about options which the public body in question would not, and could not be obliged to, provide, the court could use its case management powers under the Court of Protection Rules 2007 to refuse a hearing on that dispute as serving no useful purpose. Accordingly, since the court had not had power to order the CCG to provide and fund the parents’ requested package of care, the judge had been entitled to conclude that no useful purpose would be served by a full hearing of the competing cases on that issue and instead to make the orders sought by the CCG (paras 24–26, 29, 34, 35, 39–41, 42, 44).
Holmes-Moorhouse v Richmond upon Thames London Borough Council  1 WLR 413, HL(E) considered.
Per curiam. It is unfortunate that the issue was described in the Court of Protection as one of “jurisdiction”. The court clearly has jurisdiction to make any of the orders or declarations provided for in the 2005 Act. The question is not strictly one of jurisdiction but of how the case should be handled in the light of the limited powers of the court (para 38).
Decision of the Court of Appeal;  Fam 87;  3 WLR 1585;  WLR (D) 208 affirmed.
Kerry Bretherton QC and Neil Allen (instructed by Dollman & Pritchard, Caterham) for the father.
Hugh Southey QC and Fiona Paterson (instructed by Hill Dickinson LLP) for the CCG.
Richard Gordon QC and Alexander Ruck Keene (instructed by Steel & Shamash) for N, by his litigation friend, the Official Solicitor.
Aswini Weereratne QC and Sophy Miles (instructed by Scott-Moncrieff & Associates Ltd) for the mother.
The local authority did not appear and was not represented.
Reported by: Colin Beresford, Barrister
ICLR -  WLR(D) 202
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