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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> DA v DJ [2017] EWHC 3904 (Fam) (29 November 2017) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2017/3904.html Cite as: [2017] EWHC 3904 (Fam) |
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THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
Sitting as a Judge of the Court of Protection
____________________
DA |
Applicant |
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- and - |
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DJ |
Respondent |
____________________
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
Email: info@martenwalshcherer.com
Web: www.martenwalshcherer.com
MR DAVID REES QC and MS KATHARINE SCOTT (instructed by Bindmans LLP)
for the Respondent
____________________
Crown Copyright ©
If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
MRS JUSTICE PARKER:
"(2) A person must be assumed to havecapacity
unless it is established that he lacks
capacity
."
Therefore, this is for the applicant to prove, on a balance of probabilities, when a final determination is sought.
"(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success."
At the moment, there has been no opportunity to take any practical steps to assist.
"(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision."
"(1) ...a person lackscapacity
in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain."
It does not matter whether
"(2) impairment or disturbance may be permanent or temporary.
(3) A lack ofcapacity
cannot be established merely by reference to—
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about hiscapacity
."
"(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) touse
or
weigh
that information as part of the process of making the decision, or
(d) ...[not relevant to the present case]."
"The court may, pending the determination of an application to it in relation to a person ('P'), make an order or give directions in respect of any matter if—
(a) there is reason to believe that P lackscapacity
in relation to the matter,
(b) the matter is one to which its powers under this Act extend, and
(c) it is in P's best interests to make the order, or give the directions, without delay."
"10.21 As is the case under part VII of theMental
Health Act 1983, we consider that it would be useful for the Court of Protection to be able to make an order or give directions even if it cannot yet determine whether the person concerned actually lacks the
capacity
to take the decision in question. In exercising this emergency jurisdiction, the court would only be able to make the order or give the directions sought if it is of the opinion that the order or direction is in the best interests of the person concerned. We recommend that the Court of Protection should have power to make an order or give directions on a matter pending a decision on whether the person concerned is without
capacity
in relation to that matter (draft bill, clause 48)."
"133 This section allows the court to make interim orders even if evidence as to lack ofcapacity
is not yet available where there is reason for the court to believe that the person lacks
capacity
in respect of a particular matter and it is in his best interests for the court to act without delay."
"It is obvious that situations can arise where the obtaining of a formal declaration or decision under s.15 or s.16 (namely a final determination) will take time, but common sense suggests that some action may be needed in the interim. Common sense also suggests that if lack ofcapacity
in relation to any particular matter or decision is in issue (notwithstanding the presumption of
capacity
) then the court should have any necessary powers to enable the proper consideration and determination of that issue even (and, in fact, inevitably) if this means making orders or giving directions which affect the person whose
capacity
is in issue before that issue has been determined."
"28. Mr Cragg argues that the words 'reason to believe that P lackscapacity
' under s 48 are plainly a lower threshold test than 'proof on balance of probability that P lacks
capacity
' under the combined effects of ss 2(4) and 15. He submits, further, that common sense says that it must be a relatively low threshold. The purpose of s 48 is to authorise the taking of urgent decisions which appear to be necessary in P's best interests 'without delay', before there has been an actual determination that P does lack
capacity
. The 'reason to believe' test is therefore met if there is evidence to suggest that there is a real possibility that P may lack
capacity
, as explained in s 3(1).
29. Mr Cragg argues, therefore, that the learned District Judge fell into error, because she in effect applied a higher test in declining jurisdiction. She applied the test whether there was in fact evidence before her sufficient to rebut the presumption ofcapacity
, rather than only evidence suggesting that the presumption of
capacity
might be rebuttable.
30. Alternatively, if she did not apply the wrong test but applied the latter test, then she either erred in requiring too high a standard of possibility, or else she failed to analyse the evidence before her correctly. First, she appeared to have rejected or ignored Mr Rook's evidence, and looked solely at the medical evidence of Dr M. However, the evidence of Mr Rook, as an experiencedmental capacity
solicitor, had some weight. It clearly supported the view that there was 'reason to believe' that F lacked
capacity
at least (and directly) as far as litigation was concerned, but it also supported the view that there was reason to question and investigate other aspects of F's
capacity
.
31. Second, as to Dr M's evidence, he submitted that the District Judge had mischaracterised this as being evidence that F 'had'capacity
. Fairly viewed, his opinion was so tentative and circumlocutory that it still supported the 'reason to believe' test, his eventual conclusion against pronouncing F to lack
capacity
being plainly driven only by the presumption of
capacity
which he felt obliged to apply because of the Act.
32. Mr Cragg's submission was therefore, that, taking the evidence overall, there was clearly sufficient evidence to give 'reason to believe' that F lackedcapacity
, certainly as regards litigation, and also sufficiently as regards other relevant matters such as appropriate care services for herself. This situation would therefore engage s 48 in principle. Thereafter, the second limb of the test for whether the court should intervene, namely whether it was in F's best interests for some action to be taken without delay, would come into play. He submitted that a decision to commission a detailed psychiatric report to enable F's wider
capacity
to be assessed without delay was a decision which could and (he submitted) plainly should then have been made under this section.
33. Mr Cragg observes that the practical consequence of the approach adopted by the District Judge was that it would, apparently in all cases, be necessary to obtain a detailed or expert psychiatric evaluation before the court would accept that it had any jurisdiction to entertain proceedings under the Act at all. He submits that this cannot be right because Part 15 of the Court of Protection Rules, shows that it is envisaged that the Court itself will 'manage' expert evidence, and plainly therefore assumes that it will be exercising jurisdiction before such evidence needs to be obtained, rather than only afterwards. The fact that expert evidence may only be filed with the permission of the court or a practice direction (rule 120) also shows that it is not intended that such evidence has to be obtained before the court can entertain an application regardingcapacity
in the first place."
I cite the judgment at such length because it is necessary for these six paragraphs to be read together in order to understand the submissions made.
"35. The 'presumption ofcapacity
' reinforces the general approach of the Act, that 'P's' basic right to have the power to make decisions for himself is to be respected and protected, and can therefore only be displaced by sufficient evidence establishing that he does not have
capacity
in the relevant respect. However, such a finding is what ultimately grounds a formal declaration under s 15 of the Act, and s 48 expressly confers powers on the court to take steps 'pending' the determination of that question. It follows that the evidence required to found the court's interim jurisdiction under this section must be something less than that required to justify the ultimate declaration.
36. What is required, in my judgment, is simply sufficient evidence to justify a reasonable belief that P may lackcapacity
in the relevant regard. There are various phrases which might be used to describe this, such as 'good reason to believe' or 'serious cause for concern' or 'a real possibility' that P lacks
capacity
, but the concept behind each of them is the same, and is really quite easily recognised.
37. I therefore accept Mr Cragg's submission that the 'gateway' test for the engagement of the court's powers under s 48 must be lower than that of evidence sufficient, in itself, to rebut the presumption ofcapacity
. If and insofar as this was the test applied by the District Judge (as seems to have been the case), this was incorrect.
38. If the learned District Judge did not in fact ask herself whether the evidence before her was enough to rebut the presumption ofcapacity
, but applied some lesser test, did she nonetheless apply too high a test? In my judgment she did, because it appears that she regarded nothing less than the positive opinion of a specialist medical practitioner to the effect that F did lack the relevant
capacity
as being sufficient to found her jurisdiction even to direct a psychiatric assessment of F.
39. This must, in my judgment, be setting too high a hurdle. The Act is meant to operate in a simple and practical way, and to facilitate any necessary determination about P'scapacity
if there is 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."
"It would be unfortunate if conclusive specialist assessment came to be regarded as necessary before the court would accept jurisdiction at all."
"...in which the court should be able to intervene promptly to enable a fast and efficient determination of the issue."
"...not at all inconsistent with the empathetic approach with theMental Capacity
Act 2005 and each adult is to be treated as entitled to make his own decisions which are not to be interfered with without good reason to suppose that he is vulnerable through lack of
capacity
."
"The proper test for the engagement of s 48 in the first instance is whether there is evidence giving good cause for concern that P may lackcapacity
in some relevant regard. Once that is raised as a serious possibility, the court then moves on to the second stage to decide what action, if any, it is in P's best interests to take before a final determination of his
capacity
can be made. Such action can include not only taking immediate safeguarding steps (which may be positive or negative) with regard to P's affairs or life decisions, but it can also include giving directions to enable evidence to resolve the issue of
capacity
to be obtained quickly. Exactly what direction may be appropriate will depend on the individual facts of the case, the circumstances of P, and the momentousness of the urgent decisions in question, balanced against the principle that P's right to autonomy of decision-making for himself is to be restricted as little as is consistent with his best interests. Thus, where
capacity
itself is in issue, it may well be the case that the only proper direction in the first place should be as to obtaining appropriate specialist evidence to enable that issue to be reliably determined."
"...the unclear situation certainly suggested a serious possibility that [F] might lackcapacity
in relation to decisions about her own care needs."
"The case therefore invited a direction appropriate to the circumstances, to enable this issue to be resolved with dispatch, even though the situation might not have been serious enough to justify making any further direction or order with regard to [F's] living conditions at that stage."
"...the assessment displays insufficient forensic rigour to justify its conclusion. Neither do I regard its determination that J lackscapacity
as adequately reasoned."
"One of the key principles of theMental Capacity
Act is that a person should not be treated as unable to make a decision until everything practicable has been done to help the person make their own decision..."
Also, he referred to the Code of Practice on this topic. He commented that the mental capacity
of J was a very recent issue in the case.
"It seems to me that a prerequisite to evaluation of a person'scapacity
on any specific issue is at very least that they have explained to them the purpose and extent of the assessment itself. Here, that did not happen. In my view, it is probably fatal to any conclusion. In any event, it, at least, gravely undermines it."
"I am left with a real anxiety as to whether these remarks illustrate a lack ofcapacity
to take the decision in focus or merely an illogicality or general unreasonableness on J's part."
I can entirely see why he took that view.
"...the evidence required to make an interim declaration under section 48 is at a lower threshold than the evidence required to make a final declaration and the proper test in the first place is (a) whether there is evidence giving good cause for concern that the person might lackcapacity
and (b) when that was raised as a serious possibility, the court should take and decide what action, if any, was in the person's best interests before a final determination of his or her
capacity
could be made."
"...allows the court, pending the determination of an application, to make an order if there is reason to believe that [P] lackscapacity
, no more, no less at this stage."
She referred again to the "lower threshold test".
"...reciting only what she considers to be uncontroversial law, she plainly did not regard herself as endorsing any formulation of the test."
"...the presumption ofcapacity
is omnipresent in the framework of this legislation and there must be reason to believe that it has been rebutted, even at the interim stage. I do not consider, as the authors of the '
Mental Capacity
Assessment' did that a 'possibility', even a 'serious one' that P might lack
capacity
does justification to the rigour of the interim test. Neither do I consider 'an unclear situation' which might be thought to 'suggest a serious possibility that P lacks
capacity
' meets that which is contemplated either by Section 48 itself or the underpinning philosophy of the Act."
"...I think it is important to emphasise that Section 48 is a different test [from s.15] with a different and interim objective rather than a lesser one. 'Reason to believe' that P lackscapacity
must be predicated on solid and well-reasoned assessment in which P's voice can be heard clearly and in circumstances where his own powers of reasoning have been given the most propitious opportunity to assert themselves."
"...set at a low threshold in order to take protective intervention for children, whilst Section 48,Mental Capacity
Act, directly engages the autonomy of an adult in a legal framework where the presumption of
capacity
on individual decisions remains central throughout. Thus whilst the posited analogy does not hold, it serves, paradoxically to illustrate the extent and significance of the difference."
"It would be entirely disrespectful to J to curtail any aspect of his autonomy on the basis of such unsatisfactory evidence."
He concluded that he was entirely unclear as to whether J had capacity
to decide where he lived or not.