Court of Protection Hub
  • Home
  • Resources
    • Key cases archive
  • Cases
  • News & Views
  • About the book
  • About the site

Cases

Re RS [2015] EWCOP 56

11/9/2015

 
This case concerns whether or not it is appropriate for the court to order a capacity assessment via the use of section 49 of the Mental Capacity Act 2005 (‘MCA’). 
The Facts
RS (‘P’) is 89 years being born on 7/10/1925.  P has vascular dementia and resides in a care home under a standard authorisation by Lincolnshire County Council (‘LCC’) the supervisory body.   

The original application was made pursuant to section 21A of the Act challenging the authorisation and looking at medium to long term residence options for P.

Interim orders were made on the evidence as to P’s capacity in respect of her residence, care and contact, and to conduct proceedings. P’s capacity was assessed independently by a consultant psychiatrist who worked for Lincolnshire Partnership NHS Foundation Trust (‘LPNFT’) who concluded P had capacity to discharge the Lasting Power of attorney.

On 28th May 2015 the court ordered LPNFT under section 49 of the Act to prepare a report on P’s capacity, but giving them liberty to apply to set aside or vary the order.

At a subsequent hearing the court extended the time for filing the report.

Concerns
On 31st July 2015 LPNFT emailed the court with a letter stating that it was impossible to comply with the order and it was inappropriate to use section 49 to obtain the report and that it should be obtained by way of joint instruction from a single joint expert. The position of LPNFT was as follows:-
  • They had no involvement with P, she was not a patient under the Mental Health Services;
  • The report should be obtained by a Single Joint Expert; 
  • Section 49 is not a joint instruction and can be left open to dispute between the parties;
  • The LPNFT’s experts are not court experts and do not have the expertise in medical court reports;
  • There is potential conflict of interest as the independent psychiatrist who was instructed on a private basis works for LPNFT;
  • LPNFT is a publicly funded body with no involvement;
  • Complying with the request places a significant and disproportionate burden on their resources;
  • Vulnerable patients would be put at risk as appointments would be cancelled in order to make time to prepare the reports;
  • There was no provision for costs in order to provide locum cover;
  • Locum cover would be detrimental to patients who would not see their own consultant.

The Law
The court examined at length the ambit of section 49 (see paragraphs 12 to 18).

The court addressed the fees of the report, and looked at Practice Direction E and Rules 117 and 118 of the Court of Protection Rules.

Decision
The court found the following in answer to the LPNFT issues:-
  • that it mattered not that LPNFT were not involved -  the statute, rules and practice direction do not make such a distinction;
  • on the issue of capacity, the matter was well suited to a section 49 report where the parties were mainly publicly funded, or a party acting in person. A section 49 report would incur less delay;
  • the section 49 report was a direction of the court;
  • the rules and practice direction are clear as to the contents and format of the report. The significant growth in applications under section 21A would require physicians treating, in particular the elderly, to acquire this level of expertise, of they have not already done so;
  • the court could not see the potential conflict of interest;
  • section 49 provides the court with a wide range of power to order reports;
  • the court sympathized with the resource issue, but provision regarding fees were made under section 49. The court would carefully consider resources and time for compliance.
The court did not vary or alter the original order.  

Discussion
The court stated it would consider resources and timing in relation to such reports.  The court was at pains to state the importance of compliance with court orders, whoever the order is directed at.  This case demonstrates the importance of applying to the court at the earliest possible time to vary or set aside the order, if there is an option to do so. Such applications must be made promptly and supported by evidence.  

Read the full text of the judgment on Bailii


Comments are closed.
    Case summaries on every Court of Protection case & other relevant decisions with links to the full judgment where available. 

    Support the Hub
    This site is free to access but if you find it useful then please consider a contribution by way of support for our work.  Click here to contribute.

    Sign up for our free email alert

    We do not share your details with any third parties and you can unsubscribe at  any time

    RSS Feed


    More from Bath Publishing


    Browse

    Categories

    All
    Advance Decisions
    Assessments
    Best Interests
    Capacity
    Committal
    Contact
    Contempt Of Court
    Coronavirus
    Costs
    Deputies
    Disclosure
    DNA Testing
    DOLs
    End Of Life Decisions
    Finance
    Gifts
    Habitual Residence
    Human Rights
    Inherent Jurisdiction
    Injunctions
    International
    Jurisdiction
    LPA/EPA
    LPAs
    Medical Treatment
    Personal Welfare
    Practice & Procedure
    Pregnancy & Contraception
    Publicity
    Religion
    Reporting
    Residence
    Settlement
    Sexual Relations
    Statutory Will
    Sterilisation And Termination

    Archives

    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    February 2017
    October 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015



Picture
This site is published by Bath Publishing Limited
www.bathpublishing.com
Manage your email preferences
Read the Bath Publishing Privacy Policy
  • Home
  • Resources
    • Key cases archive
  • Cases
  • News & Views
  • About the book
  • About the site