Judicial review and best interest decisions under the MCA

The Court of Protection team at 39 Essex Street looks at an Adminstrative Court judge's ruling where a litigant in person sought to use judicial review proceedings to challenge a best interests decision made under the Mental Capacity Act.

In the case of DO v LBH [2012] EWHC 4044 (Admin) EC cared for her brother DO, who had been diagnosed with ongoing paranoid schizophrenic illness and a degenerative disorder, and his children for a number of years.

LBH decided to move DO to a care home. EC was strongly opposed this and made an application for permission for judicial review.

Coulson J dismissed her application and told LBH that it had to make an application to the Court of Protection “in order to determine the capacity of DO to make personal welfare decisions and to decide where he should live and how he should be cared for.” LBH duly applied to the Court of Protection and a series of interim orders were made for DO to continue to reside away from EC. EC sought to appeal some of these orders.

EC also made two further applications for judicial review seeking orders that she should care for DO as she was his legal carer and did not need the permission of the Court of Protection to exercise her duties. In dismissing her claims, His Honour Judge Jarman QC (sitting as a Deputy High Court Judge) said:

“18….In my judgment, despite the multi various grounds relied upon and the relief sought in these claims, at the heart of them was the same issue which lays at the heart of the first claim, whether it is EC who should be caring for her brother and making decisions on his behalf as to accommodation, care and treatment or whether such decisions should be taken by others. These are questions, in my judgment, which are also crucial in the ongoing Court of Protection proceedings in which EC is a party and in which she can and does make her representation. These are questions, in my judgment, which the Court of Protection with its expertise is particularly suited to deal with.

“19. The discretionary remedy of judicial review is one of last resort where there is no other remedy available. In my judgment it is not usually appropriate for such proceedings to continue in tandem with Court of Protection proceedings where in essence the same questions are being considered. There is nothing in the grounds of the second or third claim in my judgment, which makes the grant of permission to proceed appropriate. EC may not agree with the order being made in the Court of Protection proceedings but that does not justify, in my judgment, proceeding by way of judicial review rather than by application or appeal in the Court of Protection proceedings.”

Comment

It is perhaps not surprising that a litigant in person would not appreciate that judicial review proceedings cannot be used to challenge best interests decisions made by public bodies under the Mental Capacity Act 2005.

In this case EC escaped lightly in the sense that she was not ordered to pay costs, although the Deputy Judge considered that her claims were wholly without merit.

In the exchange recorded at the end of the judgment he expressed disapproval that a costs application was raised by the council and noted that no written application for costs had been made and EC had not been given notice of any such application.

This article was prepared by the Court of Protection team at 39 Essex Street.