Judge: HHJ Cardinal

Citation: [2011] EWHC B13

Summary: HHJ Cardinal was asked to consider an application by the Local Authority for a declaration as to the capacity of HSG to marry and to make complex financial decisions. HSG sought a declaration that he be discharged from the proceedings on the grounds that he was not appropriately before the Court of Protection in the absence of the diagnostic functional tests under the 2005 Mental Capacity Act being met. It was his second such application, the first having been refused in December 2010.

The background to the proceedings was that in the autumn of 2010, HHJ Cardinal had been asked by the police to grant forced marriage injunctions in respect of three brothers in the G family, of which HSG was one. All three were said to have varying degrees of learning difficulty and had been or were under threat, it was said, of forced marriage. The cases were subsequently transferred to the Court of Protection and listed together.

HSG was married in 2007 and was seeking a divorce. The decree nisi had been stayed pending the outcome of the proceedings, one question being whether HSG had had the capacity to enter in to a contract of marriage. The expert psychiatrist instructed to consider HSG’s case, Dr X, was unable to reach a diagnostic conclusion on the grounds that in order to do so he required further investigations and the disclosure of past records. HSG was refusing to undertake further tests, and contended vigorously before the Court (supported in this by his mother, SK) that the evidence before the Court was such it did not justify the case proceeding any further. The argument was also advanced to the Court that in such circumstances it would be a “serious breach” of HSG’s common law right to confidentiality were disclosure of “deeply personal and sensitive documents” to be ordered.

HHJ Cardinal considered the law applicable to the question of capacity under the MCA 2005 and held the following:

  • The presumption is that a person has capacity unless the contrary is shown (section 1 (2) of the MCA 2005).
  • It was only right that HSG be assessed when in the best state to be so assessed.
  • The Court could not make the declaration sought by the Council unless he was satisfied that the diagnostic and functional tests were met.
  • The test for granting an interim order under section 48 of the MCA is lower than that required for a declaration that a person lacks capacity under section 15 of the MCA: What is required is “simply evidence to justify a reasonable belief that [the individual] may lack capacity in the relevant regard.” Re F [2010] 2 FLR 28 per Marshall J cited with approval.
  • Likewise, when determining capacity, what is necessary is for the person being reviewed to comprehend and weigh up the salient details relevant to the decision to be made: LBL v RYJ and others [2010] EWHC 2664 per Macur J. In the instant case, the salient details were those going to the factors identified as relevant to the question of capacity to marry by Munby J [as he then was] in Sheffield CC v E & S [2004] EWHC 2808 (Fam).

On the facts, HHJ Cardinal found that the information available as yet to the court established the Court’s jurisdiction. There was a substantial body of evidence which gave good cause to believe that HSG may lack capacity – the test for making interim orders was accordingly made out. It would be irresponsible and premature for the court to discharge HSG when the inquiries of Dr X were not complete in circumstances where at least some of his inquiries could be completed without forcing HSG to undergo tests he was declining to undertake.

The case is of some importance because of a number of procedural difficulties that arose during the course of the application, not least the fact that a social worker employed by the Council (acting without taking legal advice) when invited to file a further statement addressing HSG’s capacity to marry chose to re-interview HSG at Court and then by telephone without consulting HSG’s solicitor. As a result, HHJ Cardinal identified at paragraph 57 of the judgment the following lessons that he considered should be learnt from the “difficult” application:

“i. An expert as a matter of good practice ought in my judgement to seek clarifications and raise questions under Rule 129 Court of Protection Rules 2007 before completing a report referring to lacunae in the information before him.
ii. A social worker investigating capacity ought to keep a party’s solicitor informed of his intention to interview that party and not just proceed.
iii. It is right to conclude that a party may lack capacity [and thus the test in Re F is met] if there are significant and important gaps in the history and therefore the knowledge of the expert examining that party and there is evidence which may well point to incapacity in the relevant regard.
iv. It is unhelpful for a doctor [in this case a GP] to descend to vague expressions such as mental health issues in a report he/she knows is to go to the court.
v. It is not in my judgement an improper interference with the human or common law rights of a party for a medical expert to be provided with educational health and other records to enable him to complete his inquiries.
vi. I do not accept that psychometric testing is so intrusive as to be an improper test to apply to someone on the borderline of capacity even where he is reluctant to undertake them.
vii. If a solicitor acting for the Official Solicitor discusses the case with a joint expert orally or in writing the instructing parties should be provided with a copy of that communication or attendance note of that conversation.”

Comment: This case is of interest because it suggests that the threshold for making an interim declaration as to lack of capacity under s.48 MCA 2005 is very low, notwithstanding the presumption in favour of capacity contained in s.1 MCA 2005. In this case, HSG’s experienced solicitor considered that his client had capacity, and the test in question (capacity to consent to marriage) was a very low one. Yet, having been seized of the matter, the court was reluctant to forego jurisdiction until the expert evidence was complete.

CategoryMental capacity - Assessing capacity, Mental capacity - Marriage, COP jurisdiction and powers - Experts Date


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