Judgment concerning Re X/COPDOL11 procedure and the need to establish mental impairment
It was accepted KB lacks capacity and her care package deprives of her liberty. In seeking authority under the Re X procedure (COPDOL11) for other cases, the applicant LA had seen them rejected previously as they used the term mental impairment and not the now out of favour term 'unsound mind'. The LA therefore did not submit medical evidence while seeking a declaration that KB 'lacks capacity to decide on care and accommodation in circumstances where neither [KB] nor anyone concerned with her welfare object[s] to the care arrangements.'
HHJ Burrows notes at  that he does not consider
'a judge making a decision as to whether P is of unsound mind has to see those exact words used by a clinician in the evidence given. What the Judge must receive is reliable evidence of mental disorder.'
And it was clear, after a review of the case law, that 'what is required is reliable medical evidence of mental disorder' and the applicant LA had not discharged that burden. He therefore directs a report be obtained from a medical doctor.
At [3-4] he also notes
" Although I have treated this case as a COP1 brought before me and I have in no way sought to provide more general guidance, what I conclude may be of wider application
 In summary, my conclusions are:
(1) In the context of applications to authorise a package of care, which inevitably results in P being deprived of his or her liberty, the Court must be satisfied that P suffers from unsoundness of mind. However, these words have no mystical powers; they are not an “open sesame” giving access to the Article 5 cave. They refer to a mental disorder. It is for the court to be satisfied that P is of unsound mind on the basis of the evidence before it. Provided that evidence satisfies the Court that P has a mental disorder, and subject of course to the other essential requirements also being satisfied, the Court may authorise detention.
(2) The European Court of Human Rights (ECtHR) jurisprudence is clear that “unsoundness of mind” has to be proved by those seeking to assert it on sound medical evidence. Usually that evidence will come from a medical doctor, generally a psychiatrist or General Practitioner. Whether, in appropriate circumstances, that evidence could come from a psychologist, mental health nurse, or other similar specialist clinical expert may be a moot point. It is one I do not have to decide in this case. I simply direct that the Applicant needs to commission and instruct a registered medical doctor, either a psychiatrist or a GP, to review KB’s case and provide a report dealing with her diagnosis as well as whether that condition causes her to lack capacity to make relevant decisions, as well as the likely duration of that condition."
Read the judgment on the National Archive
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