Best interests and available options The Court of Protection may, exceptionally, in determining whether a local authority has breached convention rights, consider best interests beyond the available options.
Extract from judgment: " I find therefore that: (i) As restated by Baroness Hale in Aintree 'the court has no greater powers than the patient would have if he were of full capacity'. (ii) Judicial review remains the proper vehicle through which to challenge unreasonable or irrational decisions made by 'care providers' and other public authorities. (iii) There may be rare cases where it appears to those representing a party that a public authority, in failing to agree to provide funding for or a particular form of care package, is acting in a way which is incompatible with Convention rights. In those circumstances, notwithstanding the fact that such an option is not available and before the court, the court may exceptionally, pursuant to a formal application made under s7(1)(b) HRA, conduct an assessment of the person's best interests beyond the scope of the available options, in order to determine whether the public authority has acted in a way which is disproportionate and incompatible with a convention right. (iv) Protection of the Article 8 rights of the parties are otherwise protected by a consideration of them by the court as part of all the relevant circumstances when carrying out a section 4 MCA 2005 best interests assessment.  In all the circumstances I accept the submission of ACCG that, contact at the family home is not an available option now or in the foreseeable future and that the court should not now embark upon a best interests analysis of contact at the parents' house as a hypothetical possibility. Looking at the care plan and taking into account all matters set out in s4 MCA2005 I am satisfied that the contact programme put forward by ACCG and approved by the Official Solicitor is in his best interests"