Mental Capacity Case

Re J

HHJ Marshall QC

Summary: This case merits highlighting for a short but important exercise of statutory construction carried out by HHJ Marshall QC. In factual circumstances that were not relevant to the point of principle, the Court had to determine the proper interpretation of s.22(3)(b) MCA 2005, which provides that a Court has the power to revoke an LPA where the donee "(i) has behaved in a way which contravenes his authority or is not in P's best interests, or (ii) proposes to behave in a way which contravenes his authority or would not be in P's best interests." In essence, the proposition advanced by the applicant was that s.22, taken as a whole, embodied a broad concept of "unsuitability." The judge did not accept this proposition, taking the view that s.22 was more narrowly focussed by reference to s.22(3)(b). The Respondent donee contended that the only conduct that the Court could take into account for purposes of s.22(3)(b) was that of the donee in his capacity as donee. The judge rejected this submission, too, taking the view (at paragraph 11) that:

"In my judgment, the key to giving proper effect to the distinction between an attorney's behaviour as attorney and his behaviour in any other capacity lies in considering the matter in stages. First, one must identify the allegedly offending behaviour or prospective behaviour. Second, one looks at all the circumstances and context and decides whether, taking everything into account, it really does amount to behaviour which is not in P's best interests, or can fairly be characterised as such. Finally, one must decide whether, taking everything into account including the fact that it is behaviour in some other capacity, it also gives good reason to take the very serious step of revoking the LPA."

At paragraph 13, she concluded that "noting the court's powers with regard to directing an attorney under s 23 of the Act... on a proper construction of s 22(3), the Court can consider any past behaviour or apparent prospective behaviour by the attorney, but that, depending on the circumstances and apparent gravity of any offending behaviour found, it can then take whatever steps it regards as appropriate in P's best interests (this only arises if P lacks capacity), to deal with the situation, whether by revoking the power or by taking some other course."

Comment: This decision provides helpful, if not entirely surprisingly, clarification of the approach that the Court is likely to take in cases of alleged unsuitability on the part of the donee of an LPA, and, in particular, where allegations are made of unsuitability on the basis of behaviour by the donee which is unconnected with the discharge of their obligations under the LPA.