Hywel Dda University Health Board v P & Anor

Summary

This private hearing, without notice to P or her mother due to a flight risk, was to determine whether, in the absence of a capacity assessment, there was reason to believe that P lacked capacity to make the relevant decisions and, if not, whether the inherent jurisdiction was available. P was 18 and lived with her family. She had global developmental delay, autism and likely learning disability. She had only ever been away from her home once for a 24-hour period in hospital, and the application was to seek her removal from the family home to undertake a series of capacity, treatment, and needs assessments.

Morgan J held that s.48 MCA 2005 required no gloss and although there was reason to believe that P was unable to make the relevant decisions, in the absence of a capacity assessment the causal nexus with her mental impairments had not been established, even on a ‘reason to believe’ basis. However, P was a vulnerable adult and there was reason to believe she was unable to decide because of the coercive control or constraint of her mother. This was demonstrated by the lack of response to clinicians during periods of difficulty, refusal to allow community learning disability nurses to enter the family home, declining assistance and visits, and reported changes in P’s own presentation from open and polite to hostile and refusing to engage.

In terms of case management, Morgan J noted that the flight risk must be seen in the light of the resources available to her mother to put any such plan into effect and the injunctive steps the court could take to ameliorate that risk. She very much loved P and, despite having previously fled with her children when they were much younger, it could not be assumed the same would happen now that two of them were adults and the third a late teenager. Moreover, public transport in West Wales was not plentiful, and her mother was reliant on state benefits.

Accordingly, exercising the inherent jurisdiction, injunctive orders were made to enable entry to the family home, access to P for assessment purposes in that setting, and prevention of P’s removal from the home by her mother or others on her instruction. The capacity assessment was the most pressing and a short return date was listed which would be on notice to all parties.

Comment

Court of Protection orders are routinely made under s.48 MCA 2005 pending further capacity evidence because “there is reason to believe that P lacks capacity in relation to the matter” and “it is in P’s best interests to make the order, or give the directions, without delay”. This decision transposes the obiter of DP v London Borough of Hillingdon [2020] EWCOP 45 into its legal reasoning.

Although both judges agree that s.48 requires no gloss, at paragraph 62(vi) of DP, Hayden J observed that “The exercise required by Section 48 is different from that set out in Section 15. The former requires a focus on whether the evidence establishes reasonable grounds to believe that P may lack capacity, the latter requires an evaluation as to whether P, in fact, lacks capacity.” Whether this description of the threshold mirrors the wording in s.48 is not necessarily a moot point, given – as was noted in DP at paragraph 57 – “under the aegis of s.48, there may be significant infringements imposed on people’s civil liberty.”

This judgment reflects the importance and relevance of the statutory principles when considering the s.48 threshold. Section 2(5) provides that “In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.” Whether this only applies to s.15 or holds true when considering whether “there is reason to believe that P lacks capacity” for s.48 purposes remains to be seen. Somerset NHS Foundation Trust v Amira [2023] EWCOP 25 at paragraph 54 would suggest the former, as does Barnet Enfield And Haringey Mental Health NHS Trust & Anor v Mr K & Ors [2023] EWCOP 35, albeit that, perhaps, it ends up being a distinction without a difference:

the language of section 48 needs no gloss and that the court need not be satisfied, on the evidence available to it, that the person lacks capacity on the balance of probabilities, but rather a lower test is applied. Belief is different from proof. Section 48 requires: 'reason to believe that P lacks capacity.' Section 2 requires: 'whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities'.  That being said in a case of this nature, where medical treatment is being considered which the patient does not consent to, the court must be satisfied there is evidence to provide a proper basis to reasonably believe the patient lacks capacity in respect of the medical decision.

This case was before a judge who was able to exercise the inherent jurisdiction. Where there is real cause for concern about a person’s capacity which cannot be properly assessed, similar injunctive orders may be required in the High Court in undue influence cases so as to determine whether the Court of Protection can then exercise its statutory jurisdiction.