Best interests decisions and future choices

The Court of Protection has made it clear that a best interests decision is a choice between available options at the time and cannot bind P if a different choice arises in the future.

Readers may recall the earlier decision of Re SK [2012] EWHC 1990 (COP), in which Bodey J was asked to decide whether P’s brother and litigation friend in personal injury proceedings should be a party to Court of Protection proceedings regarding his welfare. The defendant in the personal injury proceedings argued that it should also be joined as a party if, in effect, the claimant’s interest in those proceedings was being represented in the Court of Protection.

Bodey J refused the defendant’s application, noting that “The key point in my view is that the underlying issue in the two sets of proceedings, however similar, is not the same. The jurisdiction of the Court of Protection is as to best interests and that of the Queen's Bench Division is compensatory. The tests to be applied, although very similar (‘best interests’ as against ‘reasonable needs’) are not the same…

“A defendant not having been a party to the Court of Protection process would not be bound at a Queen’s Bench hearing as to quantum by any Court of Protection declaration as to the injured person’s best interests….Whilst the judge or master would of course pay regard to the declaration of the Court of Protection, he would not be bound by it and would decide the issue before him according to the principles relating to the assessment of damages [and I might have added ‘and according to the evidence before him, which might well not be the same as the evidence which had previously been before the Court of Protection’.]”

In the latest decision of Re SK (2013, appln no. COP11950943), the Court of Protection was in a position to make best interests declarations regarding P’s residence, as all parties agreed it was in his best interests to move to a particular residential placement. However, P’s brother argued that this should be an interim declaration only, and that the possibility that P could move to independent living in the community should be reconsidered in one or two years’ time, suggesting that if the court’s declaration was final and the welfare proceedings came to an end, this would prevent P’s personal injury claim being settled on the basis of a future claim for independent living: “It is said that the quantification of damages in the Queen’s Bench Division would be prejudiced by any Court of Protection order implying that community living is not on this court’s agenda of possibilities.

“Alternatively, it is suggested that the defendant would be likely to put forward such a well-pitched Part 36 offer in the Queen’s Bench proceedings, based on that interpretation of this court’s order, that CK, as SK’s Next Friend might well feel that it would be too risky to reject it.”

The local authority and Official Solicitor opposed this proposal, arguing that there should be no ‘speculative postponement’ on the basis that P’s best interests might change in the future.

Unsurprisingly, given his decision in 2012, Bodey J did not accept the submissions of P’s brother, and granted final declarations. The learned judge observed: “Of course there will also be cases where the court looks forward to the future as part of deciding about present best interests and where it may wish to retain a measure of oversight and control; but such an approach has to be proportionate and adopted only where there is a reasonable foreseeability of the court being able to take a further decision at a subsequent hearing within a reasonably finite period of time. Here, as submitted by Miss Butler-Cole for the local authority and Mr O'Brien for the Official Solicitor, there is no knowing at present when it may be possible to take further decisions about SK's progress. The costs of these proceedings, which have covered many areas and issues over several years, have been colossal and the proceedings should be brought to an end for everyone's sake if possible. In so saying I am satisfied from what I have heard that court proceedings as to SK's future would be more expensive than Statutory Reviews under the Mental Capacity Act.”

Although it was not strictly necessary, given the nature of a best interests declaration, Bodey J adopted a recital suggested by the Official Solicitor, so that that the effect of the court’s order should not be misunderstood: “And upon the court recording, for the avoidance of doubt, (i) that the 'best interests' assessments at this hearing and the decision underlying the declaration at paragraph (2) below is a decision taken in circumstances where there are only two other options for SK (Unit S or Unit Y) and (ii) that community-based living is not an option for him at this time; and further recording (iii) that such direction is neither intended to nor does prejudice any decision on community-based living for SK in the future.”

Comment

This decision makes it crystal clear that a best interests decision is a choice between available options at the time, and that it cannot therefore bind P (or indeed any other party) if some different choice arises for him in the future.

The judgment is also a useful example of the Court being aware of the need for proportionality in welfare proceedings, and ensuring that cases are only kept alive where there is an actual dispute which requires determination, not to monitor P’s circumstances.

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