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’).
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.
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:-
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.
The court found the following in answer to the LPNFT issues:-
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.
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