Mental Capacity Case


Macur J.
Unreported (case no. 11744555)

Summary: This case was determined well over a year ago, but anonymisation has taken a considerable period of time. It merits attention, though, because it is a very rare example of a reported case in which reasons have been given for refusal to bring welfare proceedings.

NK sought permission to bring proceedings in relation to the welfare of his elderly mother, VW. He expressed concern as to her welfare and that his relationship with her had been alienated by the method and nature of the care which she received. The purpose of his application was said primarily to be to remove her from the care home where was resident (situated a long distance from where he lived) to one located in another part of the country. He was in a position to fund such care, and wished by removing his mother to another care home to exercise more frequent contact with her than were currently imposed within a standard authorisation granted by LCC, the relevant local authority, upon the recommendations of the care home at which VW was resident. The son also wished to be appointed his mother's deputy in respect both of property and affairs and health and welfare. There was before the Court an unchallenged psychiatric report from a Dr A, who had concluded unequivocally that it was in the mother's best interests to remain resident where she was. Dr A also concluded that it was in the mother's best interests that there be no restrictions to visits taking place outside the home with independent monitors.

In determining the application, Macur J reminded herself (at paragraph 3) that, in deciding whether to grant permission where such is required by s.50 MCA 2005 and Rule 50 of the Court of Protection Rules 2007, the Court must in particular have regard to (a) the Applicant's connection with the person to whom the application relates; (b) the reasons for the application; (c) the benefit to the person to whom the application relates or the proposed order or directions, and (d) whether the benefit can be achieved in any other way.

Having directed herself thus and outlined the evidence, Macur J concluded that, considering the overall objective of the MCA and unchallenged opinion of Dr A, the proposed order and directions sought by NK if permission were to be granted were not capable of being perceived to be to the benefit of VW. The disadvantages to her in removing her from the care home in which she was residing home outweighed every benefit suggested that the move would bring. She continued:

"In those circumstances, I refuse NK permission to make application pursuant to the MCA 2005 in relation to his mother. In doing so I obviously consider that section 50 (3) and the associated Rules require the Court to prevent not only the frivolous and abusive applications but those which have no realistic prospect of success or bear any sense of proportional response to the problem that is envisaged by NK in this case." (paragraph 16)

Comment: Whilst many applicants are refused permission to bring welfare applications (see the discussion in the last issue of the valuable statistical work done in this regard by Lucy Series), reasons for the refusal of permission are rare, largely because the decisions are usually made at (what was) Archway and are not reported. This judgment is therefore of assistance in reminding practitioners as to the tests to be applied; that of proportionality between problem and response set out by Macur J may not find its express place in the MCA but - it is respectfully suggested - is clearly correct.