Re RS [2015] EWCOP 56

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