MacPherson v Sunderland City Council
Summary
This is the latest judgment in the long running Court of Protection proceedings about Ms MacPherson’s daughter. The matter came before the Court of Appeal on an appeal brought by Ms MacPherson against an order made by Poole J on 22 January 2024 sentencing her to an immediate custodial sentence for a total of four months, for contempt of court. The first instance judgment can be found at [2024] EWCOP 8. This however was not the first order for a custodial sentence that the Court had made against Ms MacPherson in the COP proceedings. She had previously been sentenced in January 2023 for contempt for 28 days, suspended for 12 months. Poole J's judgment in relation to the 2023 committal proceedings can be found at [2023] EWCOP 3.
Despite Ms MacPherson having issued her application to appeal the January 2024 order in March 2024, there were significant delays in the appeal being able to progress. It was therefore not until November 2024 that Ms McPherson’s legal team (two counsel and one solicitor), were able to have a remote conference with her. All members of the legal team expressed concerns about her capacity to conduct the appeal proceedings. She was therefore invited to participate in a capacity assessment. She refused this invitation in what was described by the Court of Appeal as ‘strong terms’.
The lawyers therefore made an application to the Court of Appeal under CPR 35.4, for permission to instruct an expert to undertake a desk top report into Ms MacPherson’s capacity to conduct the appeal proceedings. Permission to do so was granted, and a consultant psychiatrist filed a desk top report in which he stated that on the balance of probabilities Ms McPherson’s lacked the capacity to conduct the proceedings.
The Court of Appeal then convened a hearing of the appeal, which Ms MacPherson attended remotely, along with the local authority and the legal team who had raised the concerns about her litigation capacity. The Court of Appeal was at pains to emphasise the diligence with which it was made clear to the court that Ms MacPherson’s previous legal team were not acting upon her instructions or making submissions to the court, but were there to assist the court, by providing information and setting out the options available to it to progress the appeal.
Three options were put before the court. The first option was for the Court of Appeal to declare that Ms MacPherson had litigation capacity. The second option was for the Court of Appeal to declare that Ms MacPherson lacked litigation capacity. Both of these options were dismissed swiftly by the court on the basis that there was not a sufficient evidential basis for the court to come to a conclusion one way or another. The third option did however find favour with the court. This was for the Court of Appeal to make a s.48 MCA declaration that there was ‘reason to believe’ that Ms MacPherson lacked capacity to litigate, and to then transfer the determination of that matter back to a Tier 3 Judge of the COP, with a view to the matter then being returned to the Court of Appeal to hear the substantive appeal.
The Court of Appeal considered the powers that it had to make such an order both under the COP rules and under the CPR (which of course governs procedure in the Court of Appeal). In short, the Court of Appeal took the view that the both sets of rules gave them the all the powers of the first instance court, and in particular gave them the power to refer any issue to the first instance court for determination.
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 lawyers in the instant case also took scrupulous steps to alert the court to the potential that their client lacked litigation capacity (by contrast, we note, to those in Aslam v Seeley [2025] EWHC 24 (Ch), where the court identified that “the decision of the claimant's lawyers […] to keep their concerns [about litigation capacity] up their sleeve, only revealing them when required to do so by a direct question from the court, was a serious error of judgment” (paragraph 11).
More broadly, the Court of Appeal in this case was at pains to emphasise the importance of capacity assessments complying with the approach set out by Lord Stephens at paragraphs 66 and 79 of his judgment in A Local Authority v JB [2021] UKSC 52, namely that the proper approach to the determination of capacity should be considered in the following order:
i) Whether P is unable to make a decision for himself in relation to the matter (s.3 MCA 2005 – the functional test).
ii) Whether 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).
The Court of Appeal noted that, while this approach was contrary to paragraph 4.11 of the current MCA Code of Practice (which stipulates that the first stage of an assessment is to identify the impairment and then go on to consider the functional test), a new draft Code (dated June 2022 but not yet implemented) adopts the JB approach. The Court of Appeal was clear that:
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)).
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.
