L v NG [2015] EWCOP 34

Whether it was in the Patient's ('P') best interests for a deputy to be appointed as opposed to a decision by the court.

The application before the court was by the sister of P to be appointed as deputy for P’s property and affairs together with her sons.

How to deal with these issues pragmatically and in the least restrictive manner and the form of words of a restriction to be registered with the Land Registry.

Background
The Patient, NG, aged 57, is suffering from paranoid schizophrenia, having been detained on many occasions under the Mental Health Act 1983. His assets comprise the home valued at around £300,000, income from a discretionary trust and various welfare benefits. The applicant, NG’s sister, asserted that in 2007 NG had attempted to dispose of his home in a way which would indicate he was not able to manage his property and finances – a medical report supported the application in relation to his capacity on that issue. However NG objected to the application, saying that he did not need a deputy and also did not wish his sister to be a deputy.

Decision
The court applied section 16 (4) MCA 2005 namely, when deciding whether it is in the relevant person’s interest to appoint a deputy, the court must have regard to section 4 (best interests) and the principle that a decision by the court is to be preferred to the appointment of a deputy to make a decision. The court reiterated the principles of the Mental Capacity Act - that of the least restrictive option for the person’s rights and freedom of action.

The court rejected the application on the evidence. It was either unnecessary or not in NG’s best interests provided that a restriction was entered in the Land Registry which required the court to authorise any dealings with his home. The court found that any risks which would be minimised by the appointment of a deputy are “outweighed by the effect that such order would have on his self-esteem, the resulting interference with his autonomy and the impact on family relationships” (paragraph 12).

Discussion
It is clear from this authority that the Court of Protection must not simply act as a rubberstamp in relation to applications made by anyone concerning an incapacitated adult. It emphasises the ethos of the Mental Capacity Act, namely the least restrictive option, and highlights the individual’s rights and freedom of action.

The court acted wisely and was able to give guidance to NG in the event he wished to move or deal with the property, telling NG to send Form COP9 to the court with a covering letter explaining what he  wished to do and those documents should be marked for the attention of District Judge Eldergill so that NG would not be inconvenienced by any delay. However, the court also took the wise step of authorising the applicant to enter a restriction on the Land Registry as follows: “Under an order of the Court of Protection made on 11 May 2015 (case number 12523141) no disposition by the proprietor of the registered estate is to be registered except under a further order of the court”.

Read the full text of the judgment on Bailii