Introduction

In the recent case of A Local Authority v LD and RD [2023] EWHC 1258 (Fam), Mr Justice Mostyn held that 25% is the requisite degree of likelihood to satisfy a court ‘there is reason to believe that P lacks capacity’ for the purposes of an interim order pursuant to s.48(a) Mental Capacity Act 2005 (“MCA 2005”). This article explores that decision and its potential implications.

 The key facts

The case concerned LD, a man in his forties with Downs Syndrome, autistic traits, a severe learning disability, and an atrioventricular septal heart defect. Consequently, LD has 24-hour care needs and requires support in almost all activities of daily living and communication.

LD lived with his elderly mother, RD. Before the COVID-19 pandemic, RD had generally engaged with professionals to ensure LD’s needs were met. Of relevance, she had accepted limited support from a day care facility which LD attended from 2015. Contrastingly, during the pandemic, RD limited engagement with professionals to telephone consultations or interactions at her doorstep and confined LD to his room and/or bathroom. After the pandemic restrictions lifted, RD continued to refuse professionals’ requests to enter the home to care for LD and/or invitations for LD to attend clinic appointments. Save for an engineer who visited the home in April 2023, LD had not been seen by anyone other than RD since 2020. The home and RD were unkempt. Professionals had serious concerns about LD’s wellbeing and believed RD was not able to meet LD’s needs alone. Thus, the need to see and assess LD became urgent as the Local Authority had ‘grave fears that LD [was] suffering emotional and physical harm and that his health and welfare [were] being seriously impacted’.

 The application

The Local Authority applied to the Court of Protection to permit it to enter the home, by force if necessary, and authorise LD’s removal to a safe place where his capacity, health, welfare, and care needs could be assessed. To achieve this the Local Authority sought interim orders under s.48 MCA 2005 which provides:

‘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’.

 Judgment

In reaching his decision, Mr Justice Mostyn relied heavily on a witness statement from a senior social worker who had reviewed LD’s medical records and descriptions of him by previous support workers. There is no suggestion she had ever met LD herself. Her witness statement concluded that, despite having no access to LD and therefore being unable to conduct a Mental Capacity Assessment of his ability to make decisions about his residence, care, and support arrangements, on the available evidence it was ‘highly likely’ that LD lacked capacity in those areas.

Ultimately, and following careful analysis of case law in various practice areas, Mr Justice Mostyn held ‘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%’. He concluded the social worker’s witness statement satisfied him ‘to [a] likelihood higher than 25%’ that s.48(a) was established.

Potential pitfalls

This case illustrates how s.48 interim orders often present a very real tension between P’s autonomy, P’s Article 8 European Convention of Human Rights and professionals seeking to protect P’s wellbeing.

LD’s case is unusual, since a) the social worker’s witness statement regarding his capacity was not based on contemporaneous material or, seemingly, personal experience of LD, and it included opinions of professionals at the day service who cared for him as far back as 2015; and b) the circumstances had become urgent, with ‘grave fears’ being expressed regarding his wellbeing.

Nonetheless, given the possible ramifications of this judgment, one may think that the decision to set the threshold as low as 25% is concerning. In his reasoning, Mr Justice Mostyn determined that the ordinary meaning of the words ‘reason to believe’ did not require the court to be certain that it is more likely than not that P lacks capacity. He noted that such a requirement would render s.48 ‘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’. This is difficult to reconcile with s.2(4) which provides that ‘any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities’ i.e more than 50% [emphasis added], and the presumption that pervades all Court of Protection work that a person has capacity unless it is shown that they do not.

One of the cases Mr Justice Mostyn relied upon in his analysis of the phrase ‘reason to believe’, was the civil case of Jirehouse Capital v Beller [2008] EWCA Civ 908, [2009] 1 WLR 751. The issue in that case was whether an individual should be required to pay costs on account within ongoing civil proceedings; such a question pertains far less closely to issues of human rights, fundamental freedoms, and personal autonomy than the issues in the instant case. Thus, it could be argued that to take the same approach in these two scenarios simply because the phrasing is the same is somewhat reductionist, and consequently opens it up to challenge.

Furthermore, whilst Mr Justice Mostyn did provide an analysis of how he reached his decision, he did not give guidance as to how a 25% likelihood is to be measured and standardised. This will undoubtedly create difficulties in establishing consistent outcomes between judges determining s.48 applications.

Lacuna

Mr Justice Mostyn also considered the question whether, had he not reached the above conclusion regarding s.48, he could have ordered LD’s removal using the inherent jurisdiction. He referred to the December 2020 speech by former President Sir James Munby to the Court of Protection Bar Association, in which he argued that it would be inappropriate to use the inherent jurisdiction to deprive a capacitous adult of their liberties, and strongly endorsed this view. He acknowledged that this approach may leave a lacuna in which certain vulnerable but clearly capacitous adults are not protected but observed that this is something for parliament to rectify, not the courts.

Mitigating the effects of the lacuna

The authors have considered ways in which the effects of this lacuna could be mitigated in practice. One potential solution, in cases where the carer has been violent or threatened violence towards the vulnerable person, is a domestic violence prevention notice (DVPN) pursuant to s.24 Crime and Security Act 2010. This requires the perpetrator to leave, whether by eviction or exclusion, the premises where the vulnerable person lives for up to 28 days. If the notice is breached the perpetrator will be arrested, remanded in custody and brought before a magistrates court within 24 hours. The shortcomings of a DVPN is that it is limited to cases involving violence and it lasts only a short period of time.

An alternative solution could lie within s.76 Serious Crime Act 2015. This legislation provides it is a criminal offence to engage in controlling or coercive behaviour, repeatedly or continuously, towards another person to whom they are personally connected where that behaviour has a serious effect on the person and the perpetrator ought to know it will. The phrase ‘personally connected’ includes those in intimate relationships or those who live together and a) are members of the same family or b) have previously been in an intimate relationship. A drawback is that the legislation excludes carers who do not fit within the ‘personally connected’ definition. However, the authors acknowledge those scenarios are relatively rare. The ‘serious effect’ encompasses non-violent behaviour if it causes the person ‘serious alarm or distress which has a substantial adverse effect on [their] usual day to day activities’.

The problem with cases where the vulnerable person is not permitted to be seen by third parties is that it is difficult to evidence that they are experiencing ‘serious alarm or distress’ in order to satisfy a court that the s.76 test is met. As such, it does not appear this provision would have assisted in LD’s case.

On one view, it is also potentially problematic for Local Authorities to seek criminal charges of this nature against family members of vulnerable persons unless it is completely necessary, given that it will almost certainly destroy the chances of rebuilding a good working relationship in the future. Therefore, the use of any criminal sanctions should be carefully weighed up by professionals before taking such steps.

Practical implications

Framed in the reverse, a 25% threshold means that even if there were a 75% possibility that P is capacitous, s.48(a) MCA 2005 would still be established. This is likely to have the practical impact of making it easier to obtain s.48 interim orders. Some may argue this disproportionately encroaches on P’s autonomy, creates a gross inequality of power between P and the Applicant and risks costly satellite litigation. The authors take the view it is likely this decision will be reconsidered on appeal, or at least carefully/creatively interpreted by judges considering similar issues in the future.

Rose Harvey-Sullivan and Olivia Bennett, barristers, 7BR