Can the Court of Protection use its emergency powers to make an interim order under the MCA 2005 in the best interests of the patient prior to coming to a final conclusion on the issue of capacity?
DA v DJ [COP 13165704] – 27 November 2017 (published March 2020)
The Judgment has recently been published in a matter where we acted for the applicant (‘DA’) in court of protection proceedings. The case concerned (‘DJ’) DA’s mother. She was represented by the Official Solicitor as her litigation friend. DA made an application for a section 48 interim declaration under the Mental Capacity Act 2005 (‘the MCA 2005’). A transparency order was made by Mrs Justice Parker in advance of the hearing to preserve the anonymity of all lay parties, but the hearing on 27 November 2017 was held in open court. No press attended.
DJ had displayed increasingly worrying symptoms for over a decade of psychological and emotional disturbance triggered by two major traumas in her life and exaggerated by long-term cocaine use. This manifested itself in paranoid delusions and neglect of herself and her health. She was however able to engage in coherent conversations and could present as sane and rational. All four of her adult children put in lengthy witness statements in support of the application; they did this out of extreme concern for their mother.
DA (supported by his siblings) instructed a consultant psychiatrist to provide a report based on their statements. At that stage there had been no opportunity for an independent assessment of DJ. There were acknowledged limitations to the weight to be given to the approach but Mrs Justice Parker took the view that the approach could not “be wholly discounted or disregarded.” The report suggested that DJ suffered from a bi-polar disorder, possibly long-term depression and that her erratic behaviour was associated with cocaine use but equally could be caused by the condition, or by each exacerbating the other. The children said it was counterproductive to ask their mother to be assessed as she considered herself to be wholly sane and rational.
Mrs Justice Parker was asked to decide whether section 48 of the MCA 2005 gave the court power to make an order/grant interim relief prior to reaching a final decision on the issue of capacity.
During the course of submissions before her Mrs Justice Parker was referred to the Law Commission report which preceded the enactment of the MCA 2005. The Law Commission report recommended that the Court of Protection be given the power to exercise its emergency jurisdiction to make an order/give directions pending a determination on capacity, if it was in the “best interests of the person concerned” (paragraph 10.21 of the report headed “Emergency orders”). Paragraph 133 of the explanatory notes published with the MCA 2005 state that section 48 of the MCA 2005 allows the court to make such directions pending evidence as to lack of capacity if “there is reason for the Court to believe that the person lacks capacity in respect of a particular matter and it is in [P’s] best interest for the court to act without delay.”
In DA v DJ, Mrs Justice Parker considered the conflicting decisions of Judge Marshall in Re F  EWHC B30 (Fam) and Mr Justice Hayden in Wandsworth LBC v A McC  EWHC 2435 (Fam).
1. Re F concerned a middle aged woman who was thought to suffer from “a dissociative disorder of movement and somatisation disorder”: The woman was able to express her views clearly and strongly, but might be precluded from taking capacitous decisions due to the nature of the disorder. She was seen by a consultant neuropsychiatrist who had formed inconclusive views as to whether she had capacity. The District Judge refused to make an order on capacity until further medical evidence had been provided. On appeal Judge Marshall assumed that view was based on the fact that the MCA 2005 stated that capacity was presumed until rebutted so the District Judge had felt she had no jurisdiction to make the order without further medical evidence.
Judge Marshall referred to paragraph 4.34 of the Court of Protection Code of Practice, which highlighted the importance of obtaining a psychiatric assessment of P if capacity was in issue. However, taking that into account, she said a “common sense” approach should be adopted and that the court should have the power to make orders to enable the “proper consideration and determination of [capacity] even (and, in fact, inevitably) if that means making orders or giving directions which affect the person whose capacity is in issue before that issue has been determined.” Judge Marshall went on to accept the submission “that the ‘gateway’ test for the engagement of the court’s powers under s48 must be lower than that of evidence sufficient, in itself to rebut the presumption of capacity’. What was required was “sufficient evidence to justify a reasonable belief that P may lack capacity in the relevant regard”. She added that “The Act [was] meant to operate in a simple and practised way, and to facilitate any necessary determination about P’s capacity if there is a doubt. It is clearly intended at least that general medical practitioners and health professionals other than mental capacity specialists should be able to supply evidence which will enable the Court of Protection to decide whether it can or should intervene and if so how.”
Judge Marshall, a practical Judge was concerned that “GPs would believe that they could not complete assessments because of a supposed lack of expertise”. She said it would be unfortunate (also from a costs point of view) if conclusive specialist assessments came to be regarded as necessary before the court would accept jurisdiction at all.
Judge Marshall concluded that the proper test for the engagement of s48 MCA 2005 is first, is there evidence giving good cause for concern that P may lack capacity and if so, what action should the court take in P’s bests interests before a final determination of capacity can be taken. Such an action
can and may well be, giving a direction in relation to obtaining appropriate specialist evidence to enable that issue to be determined. In the case of Re F, Judge Marshall held that the threshold for engaging s 48 MCA 2005 was “clearly met.”
2. Wandsworth LBC v A McC involved the care proceedings of three children aged 13, 15 and 17, with the eldest child (“J”) being the subject of emotional and physical harm allegations. The issue to be determined was whether he should live with his mother or not.
At the first instance hearing, it was concluded that J lacked capacity as a result of his “lack of insight,” “inflexibility of thought” and inability to “sift and weigh the issues underlying the decision.” Mr Justice Hayden found on appeal that “[this] assessment displays[ed] insufficient rigour to justify its conclusion” [that he lacked capacity]. He continued that in his opinion the fact that J did not have the purpose and extent of the assessment of his capacity explained to him was “probably fatal to any conclusion [or] at least, gravely undermine[d] it.”
In DA v DJ, both leading counsel invited Mrs Justice Parker to prefer the approach of Judge Marshall to that of Mr Justice Hayden on the basis that the latter was too restrictive, making the MCA 2005 unworkable in practice and would risk the wellbeing of those whom the MCA 2005 and judges are trying to protect. Mrs Justice Parker regarded Judge Marshall’s approach as “consistent with the policy of the Act, one which makes sense on the basis of common sense and practicality“ as she observed.” She further observed that a requirement for P’s views to be heard before deciding whether the s48 MCA 2005 gateway had been passed was not the intention of the act, but rather one of the factors to be taken into account.
In this particular case, Mrs Justice Parker did not think that DJ’s views at this preliminary stage would have assisted the court as to whether the s48 MCA 2005 gateway had been passed, but would have rather delayed matters which could ultimately have led to DJ harming herself. She envisaged this being applicable in many scenarios. The use of the expression “reason to believe” in s48 MCA 2005 meant, in her opinion, that there must be evidence ‘capable of belief’ upon which the court is asked to rely. Under the Court of Protection Rules rule 95, hearsay evidence can be taken into account at any stage. The four witness statements of DJ’s children with considerable overlap but with individual experience and DJ’s text messages exhibited provided at least a “substratum of truth” to satisfy Mrs Justice Parker that “there are reasons to believe that the situation on the ground is as described.” which was enough to engage s48 in any event.
It assisted Mrs Justice Parker in coming to this decision that the applicant and Official Solicitor had presented a united position on this issue and she found that the s48(a) MCA 2005 test had been satisfied on an interim basis and that it was in DJ’s best interests to make the order without further delay.
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