A Local Authority v LD and RD
LD lived with his mother, RD. He was in his 40s with Downs Syndrome, a severe learning disability, autistic traits and could only communicate through body language. He also had a heart defect. Neither were believed to have had the Covid vaccination and, throughout and since the pandemic, both continued to isolate at home. His mother would not let others in for fear of the risk they posed to her son who had scarcely been seen by anyone in the last three years. He was being confined upstairs to his bedroom and bathroom.
Following a safeguarding review an appointment was made for LD to attend a cardiac clinic. His mother said he would not be coming as they were confined at home due to the risk of Covid and she was not prepared to put him at risk. Further attempts to see LD at home were refused and only a ‘doorstep assessment’ could be done. She would only allow carers to meet with her on the doorstep and collect a shopping list, do the shopping and then return to drop off the supplies they had bought for her.
The local authority had great fears that LD was suffering emotional and physical harm, and his health and welfare were being seriously impacted. The application to the court was to authorise LD’s removal to a place of safety where his capacity and health, welfare and caring needs could all be assessed. The local authority of course struggled to assess his capacity to make decisions as to residence and care. But from speaking to previous support workers and from reviewing LD’s records, they thought it was highly likely that LD lacked capacity to make those decisions. The issues in this case were (a) the exact meaning and scope of MCA 2005 s.48 and (b) if s.48 did not apply, the extent of the power under the High Court’s inherent jurisdiction to make an order which had the effect of depriving LD of his liberty.
Many decisions of the Court of Protection are taken on an interim basis under s.48 of the MCA 2005 which provides:
Interim orders and directions
The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if:
(a) there is reason to believe that P lacks capacity in relation to the matter,
(b) the matter is one to which its powers under this Act extend, and
(c) it is in P's best interests to make the order, or give the directions, without delay.”
At paragraph 15, his Lordship noted that if s.48 applied, “there is no doubt that the Court of Protection has power to make an injunction requiring RD to permit the applicant to enter the dwelling, by forcing the front door if necessary, and to permit the removal of LD to the place of safety.” The Official Solicitor accepted that the existing evidence was just sufficient to satisfy s.48 that there was “reason to believe that P lacks capacity in relation to the matter” which Mostyn J went on to analyse:
19. The natural construction of these terms, without referring to any case-law or principles of statutory construction, suggests the following meanings.
(i) The provision is not confined to emergency situations. It applies where the court considers it necessary to regulate the arrangements for P in relation to any matter pending the final hearing of the substantive application. It does so by making an interim order or direction.
(ii) But to be able to make such an interim order or direction all three of the specified conditions must be met.
(iii) Logically the first one to be considered is (b): the court must be satisfied that the matter that needs regulating is something that the court has substantive power to determine. As the court has power to make decisions about an incapacitated person’s welfare and property and affairs, it is hard to think of something that falls outside the court’s powers. A religious decision? Possibly.
(iv) Second, the court has to be satisfied that there is reason to believe that P lacks capacity in relation to the matter. As a matter of plain English these words suggest that there has to be some evidence that goes beyond mere suspicion that P lacks capacity to make his own decision about the matter in question. On the other hand, the words suggest that the evidence does not have to be so strong that the court is certain P lacks capacity, or even that it is more likely than not.
(v) Third, the Court has to be satisfied it would be best for P to make the order “without delay” i.e. here and now. If the court is not satisfied that it would be best to make the order now, but that it would be better to wait, then it cannot make such an order to take effect in the future.
(vi) Where all three conditions are met the Court still has a discretion whether or not to make an interim order, although the decision under the third condition will almost always answer that question.
His Lordship largely agreed with the analysis of MCA s.48 in DP (By His Accredited Legal Representative) v London Borough of Hillingdon  COPLR 769 at paragraph 62, where Hayden J observed:
(i) The words of ... s.48 require no gloss;
(ii) The question for the Court remains throughout: is there reason to believe P lacks capacity?;
(iii) That question stimulates an evidential enquiry in which the entire canvas of the available evidence requires to be scrutinised;
(iv) Section 48 is a permissive provision in the context of an emergency jurisdiction which can only result in an order being made where it is identifiably in P's best interests;
(v) The presumption of capacity applies with equal force when considering an interim order pursuant to s.48 as in a declaration pursuant to s.15;
(vi) The exercise required by s.48 is different from that set out in s.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;
(viii) The objective of s.48 is neither restrictive, in the sense that it requires a high level of proof, nor facilitative, in the sense that it is to be regarded as a perfunctory gateway to a protective regime, and
(ix) There is a balancing exercise in which the Court is required to confront the tension between supporting autonomous adult decision making and to avoid imperilling the safety and well-being of those persons whom the Act and the judges are charged with protecting.
However, Mostyn J quibbled with (iv) as there was nothing in s.48 to suggest that it is reserved for emergency situations; “nor does the court have to be satisfied that it is “identifiably” (which I take to mean “strongly”) in P’s best interests for the interim order to be made.” He also quibbled with (vi) because the question was whether P “lacks capacity” rather than “may lack capacity”. His Lordship went on to note:
The key question is what is meant by “there is reason to believe that P lacks capacity in relation to the matter”. Obviously, as Hayden V-P explains, it requires the court to alight on a degree of likelihood which falls short of the civil standard of proof. For if it meant that “it is more probable than not that P lacks capacity in relation to the matter” then the provision would be otiose because the Court would already have reached the required degree of probability or likelihood to find that incapacity is proved and could go straight to making a substantive declaration under s.15.
Mostyn J considered other legal contexts, one of which was the phrase ‘reason to believe’ used in the CPR 25.13(2)(c) in relation to an order for security for costs. He went on to decide:
29. In my judgment, the requisite degree of likelihood that will satisfy the criterion “has reason to believe” is not high and will be approximately the same as that for obtaining an interim (non-freezing) injunction or permission to appeal i.e. “a real prospect of success”. I would say that the level is not less than 25%, or odds of 3/1 (see AO v LA at  – ).
30. In this case the future event is whether the applicant will show at the final hearing that LD lacks capacity. That question will be answered by a formal capacity assessment. So, in order to satisfy the s.48(a) condition the applicant has to satisfy me, at this stage, that the present evidence demonstrates there is at least a 25% chance that such an assessment will find LD to be incapacitous. That degree of proof would be met even if the evidence were to suggest that it is more likely than not that LD is not incapacitated; it would be met even if it were as much as three times more likely (that is, of course, the effect of a 75% chance of LD not being incapacitated, which is the other side of the coin of a 25% chance that LD is incapacitated).
32. Here, the witness statement of SG has an evidential minimum critical mass and satisfies me that there is a real prospect of a capacity assessment demonstrating that LD is incapacitated in relation to decisions about his health and welfare. I would put the likelihood rather higher than 25% or at odds rather shorter than 3/1 (but not odds-on). The mental impairments suffered by LD are irreversible and so the fact that SG has not got much contemporaneous material on which to base her opinion is not as damaging to its validity as it would otherwise be. SG is qualified to give expert evidence as to mental capacity and so her opinion, that it is highly likely that LD is incapacitated in these domains, is admissible under s3(1) of the Civil Evidence Act 1972.
Having come to the view that MCA s.48 was applicable, whether it was in LD’s best interests to be removed was to be the subject of a separate judgment (para 35). Moreover, whether the inherent jurisdiction could be used to deprive a capacitous person of liberty was now irrelevant. But, obiter, Mostyn J observed that a capacitous person without a mental disorder could not be of “unsound mind” for Article 5 ECHR purposes:
41 […] Put another way, where the evidence is clear, I cannot see that there could ever be room for a class or type of unsoundness of mind for the purposes of Article 5 which does not amount to mental incapacity under the Mental Capacity Act 2005 or a mental disorder under the Mental Health Act 1983.
42. I accept that this may leave a gap in the law in that there may be out there fully capacitous, yet extremely vulnerable, adults being ruthlessly victimised and exploited by members of their family, or their carers, who the state cannot protect by forcibly removing them from their homes. That is a gap which, in my opinion, should be filled not by judicial legislation but by parliamentary legislation.”
The jurisdiction of the Court of Protection to intervene where capacity evidence is (to use a technical term) sketchy is a particularly important issue. As Hayden J observed in DP, “At the core of Section 48 lies a balancing exercise in which the State’s obligation to promote and support autonomous adult decision taking must be weighed, on the particular facts of the individual case, against the State’s equally important duty to protect some of society’s most vulnerable individuals in circumstances of crisis.” Other than in clear-cut cases where MCA s.15 declarations can readily be made on the evidence, how that balance is struck on an interim basis affects every other P coming before the court. We await with interest to see whether LD was in fact removed from the family home in this case on the basis of MCA s.48.
We note that in Mostyn J’s detailed examination of the situation no reference was made in the judgment to MCA s.2(4), which provides: “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”. The question for MCA s.48 is precisely whether there is “reason to believe that P lacks capacity in relation to the matter”. On the face of it, it might be said (and Neil certainly would say this) that s.2 therefore requires that this is decided on the balance of probabilities. It is of course being decided at an interim stage, where the focus of the evidential enquiry is on “reason to believe that P lacks capacity”, rather than “whether a person has or lacks capacity” (MCA s.15). That must mean that the evidence required to satisfy the civil standard of proof may at that stage be less than for a s.15 declaration. But the balance of probabilities remains the benchmark. In this regard, we note the decision of Keehan J in A Local Authority v AA  EWCOP 66, which proceeded on the basis that s.2(4) applied, such that the question was whether, on the balance of probabilities, there was reason to believe that the individual did not have capacity to make the relevant decisions.
It might, conversely, be said (and Alex would say this ) that s.48 sets out its own, specific, test, because the court is not determining that P lacks capacity to make a decision, but simply that there is reason to believe that P lacks capacity to make the decision. If this is the case, then it might be said that s.2(4) does not apply, in the same way that s.2(4) does not on its face apply for purposes of relying on the defence under s.5 (at which point, the question is whether the person has a reasonable belief that the individual in question lacks the requisite capacity). However, in any event, it is unfortunate that Mostyn J did not grapple with the implications of s.2(4), if only to dismiss them.
Moreover, we suggest the statutory principles in s.1 MCA 2005 apply with equal rigour to MCA s.48 as they do to MCA ss.15 and 16. The assumption of capacity, inter alia, therefore must feature when analysing the current (lack of?) evidence. For these are not necessarily future events: the court is often asked to make best interests decisions, including authorisations to deprive liberty, on this interim basis now.
Mostyn J’s observations in relation to the inherent jurisdiction were obiter but do reflect the growing consensus that it cannot be used to deprive the liberty of the capacitous. Where the person is believed to be suffering from mental disorder, s.135 of the MHA 1983 may be available if the criteria are satisfied. That could potentially have been used in this case, although it is more for short-term emergencies. For the longer term, we live in hope that the Law Commission may still be in a position to undertake work to codify the inherent jurisdiction in relation to vulnerable adults (not the least of the task being to work out precisely what language to use here).