Re F (Mental Capacity: Interim Jurisdiction)

JurisdictionEngland & Wales
Judgment Date26 June 2009
Neutral Citation[2009] EWHC B30 Fam
Date26 June 2009
CourtFamily Division

Court: Court of Protection

Judge:

HHJ Marshall QC

Re F

Appearance: S Cragg (instructed by Irwin Mitchell) for F (by her litigation friend).

Issue:

The proper test for making interim orders and directions under s. 48 Mental Capacity Act 2005.

Facts:

An issue arose as to F's capacity to decide whether to accept care services. An application was made for a declaration under s. 15 Mental Capacity Act 2005. An experienced solicitor formed the view that F did not have capacity to give instructions as she did not appreciate the complexities of her position. However, as F's GP declined to provide an assessment of capacity as she did not have the relevant expertise, the only medical evidence was from a consultant neuro-psychologist, who had seen F on one occasion, Dr M: his tentative view was that it was arguable that the discussions F had had with the solicitor reflected a lack of capacity as to litigation but that it was more reasonable to retain the presumption of capacity in other areas. The District Judge declined to order the preparation of a psychiatric assessment of F in light of the absence of evidence as to the lack of capacity, but did adjourn for further evidence (which supported the view that F did not have the capacity to litigate or to make decisions as to her care needs). On appeal, the question arose as to the proper approach to whether there was "reason to believe" that the patient lacked capacity such that interim orders and directions could be given under s. 48 Mental Capacity Act 2005.

Judgment:

(Handed down in private, but with leave to report it.)

1. This judgment gives the reasons for my order allowing the appeal in this matter, made on 28 May 2009.

This appeal

2. This is an appeal brought with my permission by F, acting by her father as litigation friend, against an order of District Judge Jackson made on 27 November 2008. It raises an issue regarding the test which has to be satisfied with regard to a person's capacity, in order to found the jurisdiction of the Court of Protection to entertain an application for any order or direction to be made under s. 48 of the Mental Capacity Act 2005.

Background

3. F is a lady of 52, who, according to the medical evidence, suffers from a "dissociative disorder of movement and a somatisation disorder", which has for a long time affected her by leaving her in a state of pain, and bed-bound, largely unable to move.

4. However, the history of the care provided for her by the local authority has been troubled. It has previously even given rise to judicial review proceedings. The local authority found F's behaviour to be antagonistic and unco-operative making it effectively impossible for it to provide appropriate care services to her. It had therefore been reduced to providing only minimum nursing care of 45 minutes 3 times per day, thereby leaving F for long periods with her apparent physical needs unattended. It had, however, expressed concerns about her mental condition.

5. The issue of F's capacity therefore came to the fore. F was being treated as a person who could decide for herself whether to accept or reject care services and whether she wished to co-operate in this, which she was not doing. The question was whether this was a correct assessment of F. If it was, then the court had no power to intervene. If it was not, then the court would have power so to declare, under s. 15 of the Mental Capacity Act 2005, and to go on, then, to decide what was in her best interests in that regard.

6. The evidence about F's capacity was mixed. In June 2008, a consultant psychiatrist, Dr T, had assessed F and opined that she did understand the effect of her behaviour on health staff, but was justifying it, and showed no intention of modifying it. Shortly afterwards, an experienced solicitor in mental capacity matters, Mr Alex Rook, interviewed F at some length, and formed the view that she did not have capacity to give instructions for litigation about the provision of social and care services for her, because she was not able to appreciate the complexities of her position, (although she was capable of expressing herself and her views).

7. In the circumstances it was decided that the issue of F's capacity needed to be determined by an application to the court for a declaration under s. 15 of the Mental Capacity Act 2005. With the concurrence of the Official Solicitor, this was brought in the name of F by her father acting as her litigation friend. F was granted public funding for this purpose. The application proposed initially to join the relevant authorities (the local Primary Care Trust and the Local Authority) into the case in order to enable a report to be jointly instructed and obtained from a qualified mental capacity expert with regard to F's capacity in relevant areas.

8. Evidence was needed to support the application. Mr Rook's opinion was tendered. However, F's GP declined to complete Form CoP 3 (Assessment of Capacity) on the grounds that she was not an expert, and Dr T was unwilling to do so, either. The CoP3 was therefore completed by Dr M, a consultant neuro-psychologist, who had seen F on one occasion on a referral by Dr T.

9. His views, however, were tentative, and rather inconclusive. His general comment was that whilst the disorders with which F had been diagnosed were classed as mental illnesses, they did not necessarily involve impairment of reasoning, and whilst F's behaviour towards her carers raised the possibility of a personality disorder, there had as yet been no such formal diagnosis. Because of a relatively short examination, he could not be clear whether F lacked the capacity to litigate the care issues in her case but he considered that it was "certainly arguable that [her reported discussions with her solicitors] reflect a lack of capacity". With regard to her capacity in other areas, such as how she was behaving towards the care services, his ultimate conclusion was expressed to be that he was "inclined to think it on balance more reasonable to retain the presumption of capacity in her case". This was because he noted that at times F was either unwilling or unable to express opinions calmly clearly or concisely, but at other times she was able to be clear about what she wanted. He acknowledged, however...

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8 cases
  • London Borough of Wandsworth v AMcC and Others
    • United Kingdom
    • Family Division
    • Invalid date
    ...satisfy either s 48 or the underpinning philosophy of the 2005 Act. To the extent that Re F (mental capacity: interim jurisdiction) [2009] EWHC B30 (Fam) or Re FM and ANR[2016] EWCA Civ 645 (a dismissal of permission to appeal) endorsed a less rigorous test, the court was not bound by eithe......
  • Re Bkr
    • Singapore
    • High Court (Singapore)
    • 1 October 2013
    ...Agencies Pte Ltd v Tan Lee King [2008] 2 SLR (R) 529; [2008] 2 SLR 529 (refd) D Borough Council v B [2012] Fam 36 (refd) F, Re [2009] EWHC B 30 (Fam) (refd) L (No 2) , Re [2013] Fam 1 (refd) Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279 (refd) LBL v RYJ [2011] 1......
  • DP (by his ALR, Keith Clarke) v London Borough of Hillingdon
    • United Kingdom
    • Court of Protection
    • 28 September 2020
    ...though my observations are now, inevitably, obiter. 51 The confusion arises from the use of language in three cases: In Re F (Mental Capacity: Interim Jurisdiction) [2009] EWHC B30 (Fam): [2010] 2 FLR 28, per HHJ Marshall; In London Borough of Wandsworth v M and Others [2017] EWHC 2435 (......
  • Re BKR
    • Singapore
    • High Court (Singapore)
    • 1 October 2013
    ...may affect different brain functions. I accept that the first three requirements are usually considered together. As stated in Re F [2009] EWHC B30 (Fam) (at [21]): The “[inability] to make a decision for himself” refers to a defect or deficiency in normal powers of reasoning, ie a shortcom......
  • Request a trial to view additional results
1 firm's commentaries
  • The Court Of Protection - Recent Cases And Comments On Procedure (Part 1)
    • United Kingdom
    • Mondaq United Kingdom
    • 1 July 2010
    ...authorities, but it is hoped that the points made herein are of more general application. Recent case-law The court's powers In Re F [2009] EWHC B30 (Fam) the court clarified that its powers under s.48 MCA 2005 to make interim orders and directions can be exercised even where there is insuf......
1 books & journal articles
  • Case Comment ASSESSING MENTAL CAPACITY
    • Singapore
    • Singapore Academy of Law Journal No. 2020, December 2020
    • 1 December 2020
    ...Capacity Act (Cap 177A, 2010 Rev Ed) s 3. 5 Mental Capacity Act (Cap 177A, 2010 Rev Ed) s 4. 6 Re BKR [2013] 4 SLR 1257 at [71]; Re F [2009] EWHC B30 (Fam) at [21]. 7 Mental Capacity Act (Cap 177A, 2010 Rev Ed) s 4. The impairment must have a causal nexus to the functional inability and not......

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