Judge: Nicholas Paines QC, sitting as Deputy High Court Judge
Citation: [2012] EHC 3595

Summary

A claim for judicial review was brought by an incapacitated elderly woman who lived in accommodation arranged by the local authority for many years under section 21 National Assistance 1948. The housing association who also provided her with care had sought to transfer her care arrangements to a different provider.

Mrs Chatting alleged that the local authority acted unlawfully in failing to act in her best interests when allowing the arrangements to change to a different provider to go ahead. Her intentions were to rely upon the 2010 ‘Prioritising Need’ guidance, which requires councils to follow the principles in s1 Mental Capacity Act 2005. In dismissing the claim Nicholas Paines QC (sitting as Deputy High Court Judge) held that the fact that Mrs Chatting was mentally incapacitated did not mean that the test to be applied was in consideration of what is in her best interests.

Comment

The decision here indicates the importance of distinguishing between what is a question of best interests and what is a question of lawful or unlawfulness in respect of a public law decision. Best interest decision making is reserved for the purpose of making decisions that P, would make her her/himself is s/he did not lack capacity.