On 22 March, the Supreme Court handed down a much-anticipated judgment on N v A CCG on the relationship between resource allocation decisions and best interests. Ben Troke will summarise and consider the impact of this judgment, give advice on putting the decision into practice, and take a look at other recent case law.

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2. @BJhealthlaw
Case law update
18 April 2017

3. @BJhealthlaw
• N v A CCG – role of CoP (and best
interests decision making / resource
allocation)
• MM & PJ – MHA and DoL
• CoP statistics

4. @BJhealthlaw
• MN – young adult male
• severe learning disability and physical
disabilities inc rare form of epilepsy
• requires nurse available 24 hours a
day
• cognitive level of 1 year old child

5. @BJhealthlaw
• care order age 8
• age 18 – CCG took over
• orders made for residence and care
package, and restricting parental
contact
• no dispute about MN’s lack of
capacity

6. • parents fought for MN to return home,
but issues narrowed by the hearing:
– they wanted MN to come home for
visits
– mother wanted to help with intimate
care for MN when she visited him
• final hearing listed
• in both cases care home was unwilling
and CCG was not prepared to fund
alternatives

7. • Eleanor King J:
– if MN had capacity … he would not be
able to compel a provider to do what
he wanted against their wishes (or a
CCG to pay for it)
• judicial review is the proper way to
challenge decisions by care providers
or public bodies

8. • Munby LJ - agreed. The role of CoP is
to choose among available options,
and not to be used to apply pressure
on funding / resource allocation
decisions
– “Rigorous probing, searching questions
and persuasion are permissible;
pressure is not”

9. “… just like P, the court can only choose between the
‘available options’”.
The court “did not have the power to order the CCG to
fund what the parents wanted, nor to order the actual
care providers to do what they were unwilling or
unable to do”

10. “The [MCA] is concerned with enabling
the court to do for the patient what he
could do for himself if of full capacity,
but it goes no further… therefore the
court has no greater powers than the
patient would have if he were of full
capacity”
Baroness Hale

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“We trust it is clear from the draft Bill
that the court only has the power to
make any decision which the person
without capacity could have made. Its
role is to stand in the shoes of the
person concerned”
February 1995

12. @BJhealthlaw
• Chatting v Viridian Housing (2012)
• AVS v and NHS Foundation Trust
(2011)
Lack of capacity is not intended to
advantage P over others in resource
allocation

13. • what does patient / service user need?
• what is available? (clinically / financially /
practically) – ie the information relevant to
the decision
• does s/he have capacity to make that
decision, then?
• what is in P’s best interests from those
options?
Best interests is concrete not abstract /
hypothetical

14. • often an application will involve
negotiation, reassessment of options,
identifying and narrowing areas of
dispute – but
“it does not follow that the court is
obliged to hold a hearing to resolve every
dispute where it will serve no useful
purpose to do so”.

15. @BJhealthlaw
• the court decides
• the court will case manage, actively
• timing – and managing expectations…

16. @BJhealthlaw
• 2 x Court of Appeal cases – re 2
individuals and the interface between
the MHA and DoL in 2 situations:
– conditional discharge
– community treatment orders

17. @BJhealthlaw
• both MM and PJ had learning disability
and autism spectrum disorder
• but both had capacity to consent to
restrictions on their liberty so focus is
on the objective element of the test
for DoL (ie continuous supervision and
control and not free to leave)

18. • pathological fire setting – arson
conviction in April 2001
• hospital order imposed + restriction
order (MHA s37 & 41)
• 2006 – conditionally discharged
• 2007 – recalled

19. @BJhealthlaw
• now – wants to be discharged from
hospital and applied to FTT seeking
conditional discharge
• little doubt that conditions would
amount to an objective DoL
• MM claims this is lawful as he has
capacity and will consent to it

20. @BJhealthlaw
• FTT disagreed – ref RB v Secretary of
State of Justice (Court of Appeal) 2012
• UTT – allowed appeal (Charles J)
• Secretary of State appealed to Court
of Appeal

21. • detained under MHA then discharged
under a CTO
• conditions of the CTO amount to an
objective DoL
• PJ applied to FTT for discharge,
rejected
• UT held that FTT should have used its
powers to discharge to prevent
ongoing breach of Article 5
• Welsh Ministers appealed

22. @BJhealthlaw
• granting a conditional discharge to a
restricted patient - there is no power
to impose conditions amounting to a
DoL
• RB v Secretary of State (2012) was
correct

23. @BJhealthlaw
• ‘consent’ in that situation as illusory
• options for FTT are to grant an
absolute discharge or a conditional
discharge that doesn’t amount to a
DoL

24. • power to impose conditions on a CTO
sits with the RC
• CTO conditions can amount to a DoL
(though the principle is that they
should be less restrictive than as in-
patient)
• FTT remit is whether to discharge if
the criteria for detention are not still
met

25. @BJhealthlaw
• so no power for the FTT to assess the
conditions on a CTO
• appropriate remedy is to challenge
CTO by judicial review

26. • difficult to see how s37/41 patients
might be conditionally discharged
where they have capacity
– likely conditions may amount to a DoL
– having capacity means that neither
DoLS nor COP can be used to authorise
the DoL
– MM (reinforcing RB) shows that tribunal
can’t authorise DoL either

27. @BJhealthlaw
• comments that RC can impose
conditions in CTO amounting to a DoL
are contrary to the policy of CTOs?
• further appeal likely?

28. @BJhealthlaw
• ongoing confusion and uncertainty
• urgency for reform – per Law Commission
• “Significant confusion and uncertainty in
practice…”

29. @BJhealthlaw
• applications to CoP re DoL increasing:
– 2013 – 109 cases
– 2014 – 525
– 2015 – 1,497
– 2016 – 3,143
• “half of which were made under re X
process” (cf the ADASS estimates)

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for news, legal updates, real
opinions and training:
https://www.linkedin.com/company
/health-and-social-care

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Please get in touch if you have any questions
or wish to discuss the topics we’ve covered
further…
ben.troke@brownejacobson.com| 0115 976 6263