The Court of Appeal has handed down judgment this morning on a fundamental matter of the Court of Protection’s jurisdiction; namely what approach should it adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient, or by the patient’s family?

Should the COP carry out a best interests assessment first, with which the patient can then bring a judicial review challenge against the care provider’s decision? King J sitting at first instance thought not. The patient’s remedy was a judicial review challenge alone.

Fiona appeared as junior counsel for the Clinical Commissioning Group whose decision was the subject of challenge, along with Hugh Southey QC.

The President of the Family Division (sitting as a Lord Justice of Appeal) has agreed and provided 4 reasons for his conclusion:

It is not a proper function of the COP to embark upon a factual inquiry into an abstract issue, the answer to which cannot affect the outcome of the proceedings before it.

It is not a proper function of the COP to embark upon a factual inquiry designed to create a factual inquiry designed to create a platform or springboard for possible judicial review proceedings.

Such an exercise runs the risk of confusing very different perspectives and principles which govern the exercise of the COP and its functions and those of a public authority- and in consequence the different issues which arise for determination in the COP and the Administrative Court.

Such an exercise runs the risk of exposing the public authority to impermissible pressure. Rigorous probing, searching questions and persuasion are permissible; pressure is not.
The President also provided guidance on the use of declaratory orders. Suggesting that such orders should be framed with reference to s16 as opposed to s15 of the MCA, he indicated that non-compliance (or threat of non-compliance) could be met by appropriate undertakings or an injunction.

Finally, he stressed that the culture within the COP of addressing every conceivable legal or factual issue, rather than concentrating on issues which really need to be resolved needs to end.