Court of Appeal statement on the ordering of the mental capacity test
The case of MacPherson v Sunderland City Council relates to an appeal by a patient whose litigation capacity to conduct an appeal was brought into focus. It discusses the Court of Protection’s powers to make interim declarations when an individual’s capacity is disputed.
This is the latest decision in the Court of Protection proceedings about Ms MacPherson’s daughter who has paranoid schizophrenia and was under separate Court of Protection proceedings. Ms MacPherson (LM) was held to be in contempt of court within those proceedings, as she breached a court order by posting about her daughter online. This led to a suspended sentence in 2023, which Ms MacPherson appealed. Ms MacPherson moved to France in 2023, where she continued to breach the injunction against her which led to further committal proceedings and a custodial sentence in January 2024.
Concerns were raised by her own lawyers in respect of Ms MacPherson’s capacity to conduct the appeal. An expert psychiatrist was instructed and conducted a paper assessment of Ms MacPherson. It was concluded that she had a possible delusional disorder affecting her ability to make decisions. The Court of Appeal made an interim declaration under the Mental Capacity Act 2005, transferring the case to the Court of Protection to determine Ms MacPherson’s capacity before proceeding with the appeal.
Mental Capacity Act
The Court of Appeal applied section 48 and Rule 10.10 of the Court of Protection Rules 2017, to make an interim order that Ms MacPherson lacked capacity, and to make interim declarations pending a full capacity assessment.
The Appeal Court determined that it had the power to make interim declarations and refer issues to lower courts, including the Court of Protection. In this case, the court used these provisions to make an interim declaration that there were reasons to believe the Appellant lacked capacity and transferred the case to a High Court judge of the Court of Protection for a full capacity determination before proceeding with the appeal.
Comment
This case was referred for a comprehensive capacity assessment, highlighting the importance of thorough and timely evaluations in such situations.
In making this referral, the Court of Appeal reminded the lower court of the need to use the process of capacity assessment set out in the Supreme Court's judgment in A Local Authority v JB [2021] UKSC 52 which outlines a two-stage test for determining capacity:
- Whether the individual is unable to make a decision about the matter (“functional test”) and then
- The inability is “because of” any impairment or disturbance of the mind or brain (“diagnostic test”)
The court also reminded practitioners that the order of the tests is as above, not the reverse order which is currently set out in the Code of Practice (to be amended when the new edition is published).
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 [recent] Supreme Court approach set out in the Hemachandran”
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Pending the outcome of the full capacity assessment, the court ordered that Ms MacPherson’s sentence be stayed, and the bench warrant for her arrest discharged until further notice.
The appeal was adjourned until Ms MacPherson’s capacity was fully assessed and determined.
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