The relationship between best interests decisions and the rational use of resources by local authorities and NHS bodies.

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1 The relationship between best interests decisions and the rational use of resources by local authorities and NHS bodies. David Lock: June This paper considers the tensions between resource based health and welfare decisions made by public bodies (notably local authorities and NHS bodies) and the best interests jurisdiction exercised by the Court of Protection. In practice tensions between these two sets of principles appear to give rise to considerable practical problems and, as resource constraints impact upon public bodies, the importance of these issues may increase. The lawfulness of resource based rationing decisions. 2. All public bodies have to balance their budgets. Living within their means leads to difficult decisions as to which patients or service users get which services since the budget can only be spent once in any financial year. In R v Cambridge Health Authority ex parte B [1995] 1 WLR 898 Lord Bingham faced the problem squarely saying: "I have no doubt that in a perfect world any treatment which a patient, or a patient's family, sought would be provided if doctors were willing to give it, no matter how much it costs, particularly when a life was potentially at stake. It would however, in my view, be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court."

2 3. The legal route to rationing is slightly different for a local authority (which has direct rather than target duties) but the end result is substantially the same. It is therefore lawful for a public body to have policies about which treatments or care options will be routinely funded and which will not. In R v North West Lancashire Health Authority ex parte A [2000] 1 WLR 977 Auld LJ said: " it is an unhappy but unavoidable feature of state funded healthcare that health authorities have to establish certain priorities in funding different treatments from their finite resources. It is natural that each authority, in establishing its own priorities, will give greater priority to lifethreatening and other grave illnesses than to others obviously less demanding of medical intervention. The precise allocation and weighting of priorities is clearly a matter of judgment for each authority, keeping well in mind its statutory obligations to meet the reasonable requirements of all those within its area for which it is responsible." 4. A public body is therefore entitled to take resource based rationing decisions as to what services are to be offered to patients or service users. It is an inevitable consequence of this power that it is not required to fulfil every healthcare or social care need of an individual and so cannot in fact act in the best interests of every service user. Is this duty changed by a person without capacity? 5. The fact that a patient lacks capacity does not entitle that patient to a greater share of NHS resources than a patient who has capacity. See In re J (A Minor) (Child in Care: Medical Treatment) [1993] Fam 15, 28 when Lord Donaldson referred to: "the sad fact of life that health authorities may on occasion find that they have too few resources, either human or material or both, to treat all the patients whom they would like to treat in the way in which they would like to treat them. It is then their duty to make choices." 6. Leggatt LJ also said in that case that invoking the inherent jurisdiction of the High Court did not give the child any greater call on the resources of the NHS than another patient who had capacity. He said otherwise a health authority: "... would be obliged to accord to this baby a priority over other patients to whom the health authority owes the same duties, but about whose interests the court is ignorant".

3 7. Thus a PCT or local authority has power to make decisions about the resources to be allocated to an individual case regardless as to whether the case is before the court or not. The High Court has held (when exercising its inherent jurisdiction prior to the creation of the present Court of Protection) that, as a matter of principle, a best interests decision cannot create any obligation on a PCT or a local authority to provide additional resources to meet a protected person s needs. In A v A Health Authority and another In re J (A Child); R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin) Munby J 1 faced the issue about the exercise of the private law powers under the inherent jurisdiction where the challenge was to a decision of a public body exercising statutory powers. He said at paragraph 53: It is clear that the court exercising its powers under the inherent jurisdiction cannot compel an unwilling private organisation or other outside party to provide a ward of court with education: In re C (A Minor) (Wardship: Jurisdiction) [1991] 2 FLR 168 (independent school refusing to admit ward of court). The position must be the same in relation to the provision of other services or facilities, for example accommodation. In my judgment the court exercising its private law powers under the inherent jurisdiction can no more compel an unwilling public authority than it can a private organisation or other outside party to provide care and attention to a child (even if the child is a ward of court) or to an incompetent adult. If it is to be said that a public authority is in some different position because it is a public authority then the answer in principle must surely be that this raises matters of public law to be determined, if not in public law proceedings, then at the very least by reference to the principles of substantive public law 8. Hence, when exercising the best interests jurisdiction, the court was required to follow the dictum of Woolf LJ in In re D (A Minor) [1987] 1 WLR 1400: "The true position is that the [wardship] jurisdiction remains but that the court must limit the exercise of its jurisdiction so as to avoid coming into conflict with the exercise by the local authority of its statutory powers and duties. As Pearson LJ said in In re B (Infants) [1962] Ch 201, 223: 'the effect of such an Act may be--not, I think, if one speaks accurately, to restrict the jurisdiction--but to restrict the scope of the proper exercise of the jurisdiction' 9. Munby J returned to this theme in St Helens Borough Council v PE [2006] EWHC 3460 (Fam) where he explained that, in A v A Health Authority and another he had been concerned with the following submission: 1 As he then was, now Lord Justice Munby.

4 [19] A bare declaration of 'best interests', without any accompanying declaration as to lawfulness, has at least one important advantage: it avoids the problems which I had to consider in A v A Health Authority and Others; Re J and Linked Applications [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, [2002] 1 FLR 845, at paras [118] [128]. Those problems arise out of the suggestion (put forward in that case by the Official Solicitor) that the effect of a declaration that a particular course of action is lawful as being in the best interests of an incapable adult is that all other courses of action are unlawful; in short that such a declaration therefore has a coercive effect vis-à-vis public authorities. [20] There may well be cases, indeed the present is such a case, where the inherent jurisdiction is being exercised in a context where the private law issues which are properly the subject of the jurisdiction being exercised by the Family Division are intertwined with or rub up against public law issues which are, for the reasons explained in A v A Health Authority and Others, more properly the preserve of proceedings in the Administrative Court for judicial review. In such a case, and for the reasons I explained in A v A Health Authority and Others, at para [126], it may be unwise, indeed inappropriate, to grant a declaration that a particular course of action is lawful as being in the best interests of an incapable adult 10. Hence the Judge explained that, at least under the inherent jurisdiction, a Declaration that a particular choice is in the best interests of a person without capacity does not mean that any other choice is unlawful or that resources are required to be found by a public body to give effect to the best interests choice made by the court in private law proceedings. 11. This approach has recently been approved in a slightly different context by the Supreme Court in Holmes-Moorhouse v Richmond upon Thames [2009] UKHL 7. The case concerned the exercise of the discretionary powers of the Magistrates Court when making orders about where children should live. The problem was that the Magistrates Court made an order that the children should live with both parents but the father did not have the means to acquire a house. He therefore applied to the local authority and asked for a residence which was large enough to accommodate both him and the children. The local authority used resource constraints to refuse to provide him with such a property. The father challenged that decision but the challenge failed in the House of Lords. 12. The point was succinctly put by Baroness Hale at paragraph 30 who said: When any family court decides with whom the children of separated parents are to live, the welfare of those children must be its paramount consideration: Children Act 1989, s 1(1). This

5 means that it must choose from the available options the future which will be best for the children, not the future which will be best for the adults. It also means that the court may be creative in devising options which the parents have not put forward. It does not mean that the court can create options where none exist 13. Hence the choice for the court was to choose between available options. She then went further to say that this order should not have been made and explained her reasoning in paragraphs 38 and 39 as follows: 38. Family court orders are meant to provide practical solutions to the practical problems faced by separating families. They are not meant to be aspirational statements of what would be for the best in some ideal world which has little prospect of realisation. Ideally there may be many cases where it would be best for the children to have a home with each of their parents. But this is not always or even usually practicable. Family courts have no power to conjure up resources where none exist. Nor can they order local authorities or other public agencies to provide particular services unless there is a specific power to do so (an example is the making of a family assistance order under section 16 of the 1989 Act). The courts cannot even do this in care proceedings, whose whole aim is to place long term parental responsibility upon the state, to look after and safeguard and promote the welfare of children who are suffering or likely to suffer harm in their own homes: see Re G (A Minor) (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 AC 576. A fortiori they cannot do this in private law proceedings between the parents. No doubt all family courts have from time to time tried to persuade local authorities to act in what we consider to be the best interests of the children whose welfare is for us the paramount consideration. But we have no power to order them to do so. Nor, in my view, should we make orders which will be unworkable unless they do. It is different, of course, if we have good reason to believe that the necessary resources will be forthcoming in the foreseeable future. The court can always ask the local authority for information about this. It may even require a report from the local children's services authority under section 7 of the 1989 Act. 39. But the family court should not use a residence order as a means of putting pressure upon a local housing authority to allocate their resources in a particular way despite all the other considerations which, as Lord Hoffmann has explained, they have to take into account. Does this approach apply in the Court of Protection? 14. It is difficult to see any basis upon which the exercise of the best interests jurisdiction under statutory scheme (brought in by the Mental Capacity Act 2005) should be any different to the exercise of the inherent jurisdiction before the passing of the Act or presently under the Children Act Consider a particular case there were three options for residence of a vulnerable service user but where the NHS body or local authority took a lawful decision that it was

6 prepared to fund either two of the three options but not the third. It would be logical for the Court of Protection to make a choice between the available two options, ignoring the third. The court does not have power to declare a best option and a next best option. Under the MCA 2005 a decision must be in the best interests of a protected party. However it would defeat the statutory purpose if the court felt it had to declare that the best interests of the protected party would be served by accommodating him at the one option that was not available and thus prevent itself from making a choice between the available options. 15. Despite clear judicial guidance on this topic there appears to be considerable tension in practice between the best interests jurisdiction and the decision making of public bodies. This leads to pressure on public bodies to take decisions and commit resources which, if these patients were not before the court, would not necessarily be provided. The answer to this problem appears to me to lie in the questions that the court must address (and thus the issues upon which the experts are asked to give their opinions). The above cases suggest that the right approach is for the public body to make it clear what treatment or care options the public body is prepared to fund (and if needed why those decisions have been made), and for the experts to advise upon and the court to adjudicate between these options. It is of course open to a party or an expert to suggest that the public body considers funding any additional options. However the court should not be invited to decide matters which cannot be delivered in the real world or where its decision is sought to be used as a lever to persuade the public body to commit funds for a particular intervention. 16. The Court of Protection has wide powers to issue injunctions as well as making best interest Declarations. See rule 82 of the Court of Protection Rules The Court therefore has power to direct a public body to make resources available to fund a care package that it considers to be in the best interests of P. However if the basis of the public body s refusal to provide such a care package is that it has made a lawful decision not to allocate the resources

7 required to fund the package, the cases cited above suggest that it would be wrong in principle for such an order to be made. 17. Any challenge to a decision by a public body to fund or not to fund a particular intervention for a person who lacks capacity can only be determined by way of a public law challenge in a Judicial Review application and not within the private law realm of the Court of Protection. It may of course be possible to have a jointly ticketed High Court Judge who can sit in the two divisions (which was the case for Munby J in In re J (A Child); R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin)) but in all other cases the above cases suggest that the Court of Protection should adopt a self denying ordnance to limit itself to those options which have been agreed to be supported by the public body out of whose budget the costs are to be met. DAVID LOCK No5 CHAMBERS Tel: +44 (0) dl@no5.com