High Court allows appeal over decision on capacity taken by circuit judge at case management hearing

The High Court has allowed a woman's appeal against a circuit judge's decision at a case management hearing that she lacked capacity to make decisions about her residence and the care she should receive.

In VT v NHS Cambridgeshire And Peterborough Integrated Care Board & Anor [2024] EWHC 294 (Fam), Mrs Justice Arbuthnot concluded that the circuit judge (CJ) reached a decision which was “not properly open to them”, and the decisions were taken “without the cogent evidence required and in a procedurally unfair manner”.

The appellant, VT, was said to have a historic diagnosis of schizophrenia. Until she was aged 78, she continued to reside in her own home.

Due to concerns that the conditions in her home were putting her at risk, her county council ("CCC") made an application to authorise P's move to a residential setting from hospital.

VT moved to residential care in June 2023. VT was deprived of her liberty pursuant to a standard authorisation which came into force two weeks later. However, she expressed a wish to return home.

In July 2023 the circuit judge made an order for a section 49 Mental Capacity Act 2005 Report which was to be filed on 29 September 2023.

There was a further directions hearing on 7 September 2023, by which time VT's condition had deteriorated, said the judge. Cambridgeshire and Peterborough Integrated Care Board ("ICB") was joined as a party.

A further directions hearing before the circuit judge was to take place on 2 October. One hour before the directions hearing took place, during pre-hearing discussions, the ICB said to the other parties, for the first time, that it intended to invite the Court to determine its application summarily.

On 2 October 2023, the section 49 report on capacity had not been filed. Those representing VT, supported by the council, applied for further evidence about P's current presentation and an exploration of the care that could be given to her on a return home.

The ICB invited the Court to conclude the proceedings that day. The ICB said it was “increasingly of the view” that a return home would be clinically unsafe for VT and on that basis it was not prepared to commission a package of care at home, said Mrs Justice Arbuthnot.

This application was opposed by the Official Solicitor on behalf of VT and by CCC.

The circuit judge decided that VT lacked capacity to conduct proceedings, to make decisions about her residence and about the care she should receive, to manage her property and affairs and to make decisions concerning her items and belongings.

The Court determined that the ‘best interests requirement’ was met.

In the judgment the circuit judge was asked to give, the circuit judge said that VT lacked capacity on the evidence and said that there was no point in waiting for the section 49 report as it would not add very much to the picture which was "fairly clear" from other evidence.

The decision was appealed by the Official Solicitor on behalf of VT supported by CCC.

Mrs Justice Arbuthnot said: “The ICB took a realistic approach. By the time I heard the application on 1st November 2023, VT had stabilised. The initial thoughts that she was in a rapid terminal decline were misplaced.”

The judge noted that the Court of Protection “does not have an express power to give summary judgment”, but such powers exist in the Court of Protection by virtue of rule 2.5, which provides for the application of the Civil Procedure Rules:

"2.5.—(1) In any case not expressly provided for by these Rules or the practice directions made under them, the court may apply either the Civil Procedure Rules 1998 or the Family Procedure Rules 2010 (including in either case the practice directions made under them) with any necessary modifications, in so far as is necessary to further the overriding objective".

Guidance as to the quality of evidence required to determine capacity was identified by the European Court of Human Rights in Sýkora v The Czech Republic, 22 November 2012, at paragraph 103:

"any deprivation or limitation of legal capacity must be based on sufficiently reliable and conclusive evidence. An expert medical report should explain what kind of actions the applicant is unable to understand or control and what the consequences of his illness are for his social life, health, pecuniary interests, and so on. The degree of the applicant's incapacity should be addressed in sufficient detail by the medical reports”.

Mrs Justice Arbuthnot said: “In any cases where such powers are contemplated, at a stage where the determination would dispose of the case, two matters will need to be given careful consideration:

1. Whether the court has sufficient information to make the determination (per Hayden J "curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry" paragraph 33 CB supra); and
2. Whether the determination can be reached in a procedurally fair manner.

The judge observed that notice to the parties is an element of procedural fairness. “Whether such notice is required, and how much notice is needed, will depend on the context. Procedural fairness in this case, however, would seem to require more than one hour's notice that final decisions might be made”, she added.

Allowing VT's appeal, the judge determined that the circuit judge (CJ) reached a decision which was “not properly open to them”.

She said: “The section 49 report was not available and it was not appropriate for the CJ to make a decision on capacity when the CJ could only say that it was "fairly clear" from other evidence that VT lacked it. The decision as to best interests was contested properly by those acting on behalf of VT and CCC and was taken without permitting adequate exploration of the reasons why alternative options were not open to VT.”

She concluded that the circuit judge reached decisions which, “in principle, were possible, but which were not sustainable on the material before the court”.

Finally, she added: “VT's interests were not properly considered. In the circumstances, it was not appropriate to reach such an important decision for VT based on submissions. The effect of the decisions taken were to deprive VT of a fundamental freedom. The decisions were taken without the cogent evidence required and in a procedurally unfair manner.”

Lottie Winson