Litigation capacity and a very clear statement from the Court of Appeal about the ordering of the capacity test

MacPherson v Sunderland City Council [2024] EWCA Civ 1579 is another chapter in the very long-running saga concerning contempt proceedings against the appellant, the mother of the subject of (now concluded) proceedings in the Court of Protection. It is of wider note as a case study in the exemplary discharge by legal representatives of their obligations towards the court where they are concerned as to their client’s ability to instruct them.  , and for the very clear direction by the Court of Appeal about how the ordering of the capacity test is to be approachedAs King LJ noted:

11. On 6 November 2024, Mr Micheal Barrett, an experienced Court of Protection solicitor together with counsel Mr Oliver Lewis, a specialist Court of Protection counsel, and Beth Grossman, specialist media counsel, had a remote conference with the Appellant. During the course of the conference each of the three lawyers had concerns about the Appellant’s capacity to conduct the appeal proceedings. As required under their professional obligation, those concerns were raised with the Appellant and she was invited to participate in a capacity assessment which was arranged for 18 November 2024 with Dr Pramod Prabhakaran a psychiatrist experienced in conducting capacity assessments for the Court of Protection. The Appellant declined to co-operate with such an assessment in strong terms.

Dr Prabkharan produced a paper-based assessment, acknowledging the limitations of such an assessment, setting out his report “in a rather unorthodox way,” but expressing the view that:

17. […] on the balance of probability the functional test was satisfied in that the Appellant was unable to make decisions regarding the conduct of the proceedings due to an inability to use and weigh up information relevant to the court proceedings and that on the balance of probabilities the information available suggests the “possibility of a delusional disorder”.

At the hearing of what was intended to be the appeal by the appellant against her custodial sentence for complaint:

18. The Court had the benefit of a note by counsel for the Appellant drafted by Mr Lewis setting out the background and presenting the Court with three possible options which it may have felt were available to it. It should be noted that Mr Lewis, and those instructing him, were at all times diligent in reminding the Court that they did not act upon the Appellant’s instructions and were not making submissions to the Court, but merely assisting by way of providing information and presenting the Court with a number of alternative ways to progress the matter.

19. Options 1 and 2 were that the Court at the listed hearing of the appeal on 3 December 2024 either (Option 1); declared that the Appellant had litigation capacity or (Option 2); declared that she lacked litigation capacity. Both of these options were quickly dismissed, there being no sufficient evidential basis upon which this Court could have concluded either way. The focus of the hearing was therefore on Mr Lewis’ “Option 3” an option favoured also by the Local Authority.

20. Option 3 was that that Court could make an interim declaration pursuant to Section 48 of the Mental Capacity Act 2005 (“MCA 2005”) on the basis that the Court had “reasons to believe that the Appellant lacks capacity”. Option 3 envisioned the Court of Appeal then transferring the case to a Tier 3 (High Court) Judge of the Court of Protection in order to determine the matter of capacity before the matter was returned to the Court of Appeal to hear the substantive appeal on a “firmer capacity footing”.

21. The Appellant expressed her views about Option 3 clearly and strongly over a remote link. She became at times agitated and unsurprisingly, had difficulty in limiting her submissions to the issue of the necessity (or otherwise) for there to be a capacity assessment and determination. The Court was obliged to turn off the Appellant’s microphone on a number of occasions during the hearing when she was unable to restrain herself or to listen to what was being said by others.

22. The Appellant told the Court that she was not prepared to undergo any form of capacity assessment in England. At one stage she seemed to suggest that she may be willing to co-operate with an assessment in France. It was unclear to me whether, given the provisions of the MCA 2005 she envisaged that such an assessment would be conducted remotely by a UK psychiatrist, as it would need to be, or whether she was suggesting an assessment by a French psychiatrist which clearly would not be of assistance as such an assessment would not be based on the UK law on mental capacity.

23. The Appellant said that the issue about capacity arose from “faulty and lying notes” which her legal team had made following the conference in November. She said that her adamant refusal to be assessed stemmed from the fact that her daughter had been wrongly assessed as lacking capacity by a “so called independent psychiatrist”. She indicated that the issue of her daughter’s capacity is before the European Court of Human Rights. She repeated her anger and upset about the alleged treatment of her by her lawyers saying that they were not fit to be instructed and had “shamelessly lied and made false notes”. The Appellant quite understandably and with some justification regarded a further delay to the determination of her appeal as “intolerable”.

King LJ noted that:

24. For my part I can see no basis for the allegations that the Appellant makes against her legal team. On the contrary, they have acted wholly in accordance with their respective codes of professional practice and having had concerns about the Appellant’s capacity to prosecute her appeal, brought the matter to the Court for directions.

25. Having read not only the psychiatric report, but also the evidence in support and having heard the submissions of the Appellant together with the observations from Mr Lewis and Mr Karim KC on behalf of the local authority the Court rose to consider the position. We had in mind the limitations of the paper psychiatric assessment but having considered all the evidence, we concluded that we had reason to believe that the Appellant lacked capacity in relation to the appeal and that accordingly, Option 3 was the appropriate course to adopt. [….]

King LJ emphasised that the Court of Appeal was not a position to make a final declaration that the appellant lacked capacity to conduct the proceedings:

35. […] any assessment, but also that any report prepared in preparation for the determination of the issue approaches the question of whether the Appellant is unable to make a decision “about a matter” for the purposes of section 2 MCA 2005 by reference to the judgment of the Supreme Court in A Local Authority v JB[2021] UKSC 52[2022] AC 1322. Lord Stephens said in his judgment at [66] and [79] that the proper approach to the determination of capacity should be considered in the following order namely:

i) Whether P is unable to make a decision for himself in relation to the matter [65-77] (s.3 MCA 2005– the functional test).

i) The inability to make a decision is “because of” an impairment of, or disturbance of the functioning of, the mind or brain (s.2(1) MCA 2005– the diagnostic or mental impairment test).

36. Importantly at paragraph 79 Lord Stephens said:

“The second question looks to whether there is a clear causative nexus between P’s inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P’s mind or brain.”

37. It should be noted that the MCA 2005 Code of Practice at para. 4.11 is in direct contradiction to the judgment in Re JB and stipulates the two-stage test of capacity should be approached with the first stage being to establish whether someone has an impairment (i.e. the diagnostic test) and only then to move onto the functional test. A new draft Code dated June 2022 but yet to be implemented, adopts the Re JB approach. Regardless of the fact that the new Code has not yet been implemented, all assessments should comply with the Supreme Court approach (see Hemachandran v University Hospitals Birmingham NHS Foundation Trust [2024] EWCA Civ 896 para.[140] (iii)).

38. The issue of capacity having been raised it must be determined. That does not mean that there must inevitably be an interim declaration. It is a requirement of Section 48 MCA 2005 that the court not only has reason to believe that the Appellant lacks capacity in relation to this appeal, but also that is in her best interest to make the order. Conscious as I am of the considerable delay that there has already been in the hearing of this appeal through no fault of the Appellant’s own, I am nevertheless satisfied that Option 3 is in her best interests notwithstanding that it will lead to further delay. The appeal relates to the Appellant’s liberty. Should she fail in her appeal she will remain subject to an immediate sentence of imprisonment. If she lacks capacity, it is vital that she has the benefit of representation through the Official Solicitor regardless of whether she ultimately feels able to co-operate with the process.

The question of the appellant’s capacity to conduct the appeal was therefore remitted to a Tier 3 Judge of the Court of Protection for determination, and, once that had been done, the appeal would be referred back to the Court of Appeal for further directions.

Comment

The challenges posed where a client appears to lack the capacity to conduct proceedings – for both the lawyers, and the court – were recently emphasised in the Civil Justice Council’s November 2024 report.  The instant case shows the importance of getting it right, on the basis of the right evidence.

The Court of Appeal’s very clear direction that capacity assessments should comply with the ordering of the test set out in the MCA (and confirmed in JB) rather than the Code of Practice, is very helpful, but only reinforces how problematic it is that progress on updating the Code is stalled.  In the meantime, this unofficial update highlights the (many) paragraphs that should not be followed because case-law has confirmed that they do not accurately reflect the requirements of the MCA 2005.

The only part of the judgment that might raise eyebrows was the view taken by the Court of Appeal that they could rely upon the provisions of rule 20.13 of the Court of Protection Rules 2017 to cloak themselves with the necessary power to remit the question of the appellant’s litigation capacity to a Tier 3 Judge.  The Court of Protection Rules 2017 are conventionally understood only to apply within the Court of Protection, and hence the provisions of Part 20 (appeals) to apply only in relation to ‘internal’ appeals within the Court of Protection.  Appeals which escape the gravitational pull of the Court of Protection are conventionally understood to be governed by the CPR (if in the Court of Appeal), and the Supreme Court rules (in the Supreme Court): see, for instance, Cheshire West and Chester Council v P (No 2) [2011] EWCA Civ 1333 at paragraph 3, where Munby LJ noted that “[i]t is common ground that although this is an appeal from the Court of Protection the Court of Protection Rules do not apply.”  However, and for the avoidance of any doubt, this does not mean that the Court of Appeal in Ms MacPherson’s case lacked the power to do what it did, given that (as King LJ herself noted), it had the equivalent power to do so under rule 52.20(1) of the CPR.

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