Judge: Holman J
Citation:  EWCOP 50
In the sequel to the case that we reported in our last Newsletter, concerning whether the Court of Protection should embark upon a full capacity determination in respect of Mr X in circumstances where the funding local authority had indicated that it simply could not meet the costs of his care within his own home, matters took a slightly unexpected turn.
First, it turned out that, in fact (and unsurprisingly given the level of his needs), Mr X’s funding would be more likely to be an NHS than a local authority responsibility.
Second, a further report from the independent psychiatrist concluded that, in fact, Mr X did have capacity to make decisions upon his residence and care. This was in line with the report from his consultant psychiatrist to the same effect.
The local authority sought permission (under Rule 87A of the COPR, introduced with effect from July 2015) to withdraw proceedings as it was no longer the relevant funding body; alternatively, they sought that, if the CCG wished to reinstate the proceedings, the local authority should be allowed to withdraw from the proceedings. The Official Solicitor’s position was that the evidence in relation to capacity was now so clear that the court should formally make a declaration to this effect under s.15(1)(a), which would have the effect of bringing the proceedings to an end. The local authority argued that their application under Rule 87A should be determined first, both because it had been lodge first, and as a matter of logic.
Holman J held as follows:
“My view on these competing arguments is as follows. I am faced today with applications that I should exercise discretions arising both under section 15 of the Act and rule 87A of the rules. I do not accept that I need, chronologically or logically, to exercise my discretion under rule 87A before giving any consideration to the discretion under section 15 of the Act itself. Both these applications are currently before the court at a single hearing, and it seems to me that I should give composite consideration to my exercise of the discretions under them. I accept the submission of Ms. Dolan [on behalf of the Official Solicitor] that when there is clear evidence from two consultant psychiatrists, who formerly both considered that a patient lacked capacity but now consider that he does have capacity, the court must be very cautious about improperly leaving the proceedings in being. The existing jurisdictional foundation for these proceedings is the earlier interim orders that the patient lacks capacity, which themselves subsisted on the basis of the earlier opinions of both Dr Isaac and the treating psychiatrist. Those psychiatrists having now changed their opinions, I could not leave those interim declarations in place. In the absence of an interim declaration, the presumption of capacity under the Act would, in any event, revive. But it does go further than that. The clear opinion of these two consultant psychiatrists, both of whom have now known this patient over a period of time, is to the effect that he does have capacity with regard to his residence and care.
Holman J considered that the evidence was “currently all one way. It is to the effect that a patient, who was previously considered to lack capacity, does now have capacity. I agree with Ms. Dolan that, at any rate on the facts and in the circumstances of this case, that conclusion should be clearly and formally expressed by a declaration made under section 15. It is true that the written evidence of the two psychiatrists has not been ‘tested’ by cross-examination by or on behalf of the local authority but, as I have said, they do not have any positive evidence to the contrary.” He therefore made a declaration to that effect under s.15(1)(a) and did not grant permission to the local authority to withdraw proceedings which had ceased to have effect at the moment he made that declaration.
This is of some interest as the first reported judgment to consider the new Rule 87A. What we look forward to in due course is a case which the court in determining that application confirms that it is making a case management decision, rather than a decision for or on behalf of P (such that it is not therefore bound to act in P’s best interests). We suggest that, by analogy with the position under the FPR, it is a case management decision, albeit one taken with P’s interests squarely in mind: see Re W (Care Proceedings: Functions of Court and Local Authority)  EWCA Civ 1227. On the facts of the instant case, that issue did not fall for determination, and Holman J was plainly right to determine the greater – whether P had capacity – before determining the lesser – whether proceedings should be withdrawn – so as to put to matter further questions about his capacity beyond question.
As to the much bigger issue lurking behind the original Re X case – what the CoP should do in the face of an assertion by a public body that only one option is available – judgment was reserved following a day and a half hearing before an impressively interventionist Supreme Court in Re MN.