The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not had the jurisdiction sought. This was a public law issue challengeable only by judicial review. The CoP had only the ability to choose between the options offered.
Held: The appeal failed: ‘This was not a case in which the court did not have jurisdiction to continue with the planned hearing. It was a case in which the court did not have power to order the CCG to fund what the parents wanted. Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do. In those circumstances, the court was entitled to conclude that, in the exercise of its case management powers, no useful purpose would be served by continuing the hearing.’
‘the jurisdiction of the Court of Protection (and for that matter the inherent jurisdiction of the High Court relating to people who lack capacity) is limited to decisions that a person is unable to take for himself. It is not to be equated with the jurisdiction of family courts under the Children Act 1989, to take children away from their families and place them in the care of a local authority, which then acquires parental responsibility for, and numerous statutory duties towards, those children. There is no such thing as a care order in respect of a person of 18 or over. Nor is the jurisdiction to be equated with the wardship jurisdiction of the High Court. Both may have their historical roots in the ancient powers of the Crown as parens patriae over people who were then termed infants, idiots and the insane. But the Court of Protection does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court.’
The issue is not one of jurisdiction in the usual sense of whether the court has jurisdiction to hear the case. After all, the Court of Protection made the orders which it was asked to make in this case and no-one has suggested that it had no jurisdiction to do so. It was seized of an application properly made by the authorities responsible for providing services for MN. The context was a care order giving the local authority parental responsibility for him which was about to come to an end. No doubt if there had been no dispute with the family about his care, there would have been no need to make an application. Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the ‘deprivation of liberty safeguards’ in Schedule A1 to the 2005 Act) then it may be necessary to bring the case to court, as the authorities did in this case. The court clearly has jurisdiction to make any of the orders or declarations provided for in the 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.
Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes
 UKSC 22,  2 WLR 1011,  WLR(D) 202, UKSC 2015/0238, (2017) 155 BMLR 1,  COPLR 200, (2017) 20 CCL Rep 133,  3 All ER 719,  AC 549
Bailii, SC, SC Summary, SC Summary Video, SC 161214 am Video, SC 161214 pm Video, SC 161215 am Video, WLRD
Mental Capacity Act 2005
England and Wales
At CoP – ACCG and Another v MN and Others CoP 20-Nov-2013
Application for order under the 2005 Act restricting contact between the young adult child with disabilities and his family. Eleanor King J described his condition saying he had: ‘severe learning and physical disabilities together with autism and an . .
Cited – A v Liverpool City Council HL 1981
Though the child was subject to a care order in favour of the local authority, a wardship order was sought.
Held: Once a care order had been made, whether final or interim, the court was effectively faced with a choice and not a choice which . .
Leave to Appeal CA – ACCG and Another v MN CA 25-Jun-2014
Two renewed applications for permission to appeal from a judgment of the CoP regarding provision of support for home visits for a young adult with severe health difficulties and the scope of the power of the CoP to make provisions. . .
Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Cited – AN v Lithuania ECHR 31-May-2016
Where the court cited article 12 of the Convention (para 69) and held that where a measure of protection is necessary, it should be proportionate to the degree of incapacity and tailored to the individual’s circumstances and needs . .
Cited – St Helens Borough Council v PE and Another FD 29-Dec-2006
The court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote a vulnerable adult’s welfare and interests. The inherent jurisdiction of the High Court encompasses situations in which the necessity . .
Cited – KC and Another v City of Westminster Social and Community Services Dept. and Another; Westminster City Council v C and others CA 19-Mar-2008
A ‘marriage’ though valid under both Sharia law and the lex loci celebrationis despite the manifest incapacity of one of the parties was not, on grounds of public policy, entitled to recognition in English law.
The 2005 Act has not abolished . .
Cited – Holmes-Moorhouse v Richmond Upon Thames HL 4-Feb-2009
The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing.
Held: The authority’s appeal succeeded.
‘When any family court decides with whom the children of separated . .
Cited – XCC v AA and Another (Rev 3) CoP 26-Jul-2012
The scope of the declarations which may be made by the Court of Protection under section 15 may be narrower than the scope of those which may be made in the High Court . .
Cited – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Cited – Mcdonald v The United Kingdom ECHR 20-May-2014
Decisions about the allocation of limited resources may well be justified as necessary in the interests of the economic well-being of the country. . .
Cited – Re MN (Adult) CA 7-May-2015
The parties disputed the care of MN, a young adult without capacity.
Held: Munby P gave four reasons why the Court of Protection should not embark on the kind of process for which the parents contended: first, it is not its proper function to . .
Cited – KD and Another v London Borough of Havering CoP 19-Oct-2009
The court may determine a case summarily of its own motion, but their power ‘must be exercised appropriately and with a modicum of restraint’. . .
Cited – Gard And Others v The UK ECHR 13-Jun-2017
ECHR Decision . .
Cited – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .
Cited – W v M and Others CoP 28-Sep-2011
Baker J pointed out that ‘there is a spectrum of minimal consciousness extending from patients who are only just above the vegetative state to those who are bordering on full consciousness.’
Orse W (by her litigation friend, B) v M (by her . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – Lambert And Others v France ECHR 5-Jun-2015
The applicants alleged, in particular, that the withdrawal of Vincent Lambert’s artificial nutrition and hydration would be in breach of the State’s obligations under Article 2 of the Convention, would constitute ill-treatment amounting to torture . .
Cited – KU (A Child) v Liverpool City Council CA 27-Apr-2005
The solicitor appealed an order which made the success fee payable different at diferent stages of the court action.
Held: The court had no power to make such an order. To the extent that the CPR might suggest otherwise they were wrong. . .
Cited – Glass v The United Kingdom ECHR 9-Mar-2004
The applicant’s adult son was disabled. There was a disagreement with the hospital about his care. The hospital considered that to alleviate his distress, he should not be resuscitated. The family wanted to take him home, fearing euthanasia. The . .
Cited – S, In re (hospital patient: court’s jurisdiction) FD 1995
Hale J said: ‘ . . what is sought in this case is the preservation of the status quo while proper inquiries are made. The appropriate way to achieve this is obviously by way of an interlocutory injunction … if the position is not yet known, then . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.581028