The role of the Court of Protection is to decide whether an individual (“P”) has the mental capacity to make a particular decision(s) and, if not, to decide what should happen in P’s best interests on those matters.

In many cases, the Court will make a final declaration pursuant to s.15 Mental Capacity Act 2005 [1] (“MCA”) that P lacks capacity to make the relevant decision before the Court goes on to make any orders in P’s best interests.

Often, however, there is a need for the Court to make orders during the course of proceedings before it has made a final declaration pursuant to s.15 MCA that P lacks capacity to make the particular decision. These are known as interim orders.

The idea that the Court can make orders about what should happen to P (often orders which will have a significant impact on P’s life, sometimes even against P’s own wishes) before it has actually fully and finally determined whether or not P has the capacity to make the decision for themselves may seem unusual, however there is often good reason for this. For example, it may be that urgent action needs to be taken to protect P’s welfare, but additional evidence is required before the Court can come to a final view as to whether or not P has capacity to make the relevant decision and it would take too long to obtain that evidence before the decision needs to be made.

To provide for this, s.48 MCA allows the Court to make interim orders and directions in relation to P, pending final determination of the application before the Court. In order to have jurisdiction to make an interim order or direction pursuant to s.48, the Court needs to be satisfied that:

  1. there is reason to believe that P lacks capacity in relation to the matter,
  2. the matter is one to which its powers under the MCA extend, and
  3. it is in P's best interests to make the order, or give the directions, without delay.

Having ‘reason to believe’ that P lacks capacity is a lower threshold than the standard of proof ordinarily required in the Court of Protection, which is the balance of probabilities (i.e. that something is more likely than not). In other words, it requires the Court to have some evidence that P lacks capacity to make the relevant decision (sufficient to rebut the presumption of capacity, which still applies), but the Court does not necessarily need to have all of the evidence it would need to make a declaration pursuant to s.15 Mental Capacity Act 2005.

An issue which has engendered some debate amongst Court of Protection practitioners and Judges in recent times is how the Court should record the fact that it has reason to believe that P lacks capacity to make a particular decision, thereby granting itself jurisdiction to make an interim order pursuant to s.48.

At one point it was common practice for the Court to make interim declarations, purportedly pursuant to s.48 MCA, declaring that there is reason to believe that P lacks capacity to make the relevant decision. However, in the much-discussed case of DP v Hillingdon [2020] EWCP 45, Mr Justice Hayden considered the issue of s.48 declarations in the context of a s.21A application [2] and held that there is no need for the Court to make declarations under s.48 as to P’s lack of capacity, in those s.21A applications, for the purpose of Schedule A1 of the MCA, whilst a standard authorisation remains in force. He also stated (at paragraph 40) that s.48 “does not provide for the making of a declaration. Thus, the Court’s finding that there is reason to believe that P lacks capacity ought, strictly, not to be phrased in declaratory terms”.

Since then, different approaches have been taken by practitioners and the Court when faced with a situation where the Court is required to make interim orders. One approach is for the Court to simply record by way of a recital on the face of the order that there is reason to believe that P lacks capacity to make the relevant decision, thereby circumventing the need for any ‘interim declarations’, whilst recording that the Court is satisfied that there is sufficient evidence of P’s lack of capacity to afford it jurisdiction to make an interim order.

An alternative approach was adopted by Deputy High Court Judge McKendrick KC in his recent judgment in Barnet, Enfield and Haringey Mental Health NHS Trust & Anor & Mr K & Ors [2023] EWCOP 35. The case concerned Mr K, a 60 year old man with paranoid personality disorder and delusional beliefs, who was resident at a care home. Mr K was suffering from chronic bilateral venous leg ulcers but refused to engage with professionals and would not agree to any assessment or treatment of his leg ulcers. Concerns arose that his wounds may have been infected and that he may require urgent assessment and treatment of his leg ulcers to prevent any infection from becoming more serious, with potentially significant consequences for Mr K. Matters were significantly complicated by the fact that Mr K suffered from a long-standing heart condition which meant that any assessment or treatment against his will (using physical restraint and/or chemical sedation) would pose serious risks. In view of the risks involved in conveying Mr K to hospital for assessment and treatment, the professionals formulated a care plan for an assessment to take place at the care home, using a degree of physical restraint and sedation that was considered to be safe. The Judge was asked to authorise that care plan and the deprivation of liberty arising from it, to permit an assessment to take place against Mr K’s wishes in order that the clinicians could then decide what, if any, treatment he may require and what options may be available to him.

In authorising the care plan in Mr K’s best interests by way of an interim order, the Judge originally made a declaration pursuant to s.48 MCA that “there is reason to believe that the first respondent lacks capacity to make decisions about the medical treatment of his chronic bilateral venous leg ulcers and all necessary ancillary treatment to permit the assessment, investigation and assessment." However, after providing a copy of his draft judgment to the parties’ legal representatives, the Judge received submissions from Counsel for the Official Solicitor, suggesting that he should reconsider making s.48 declarations in light of the guidance given by Mr Justice Hayden in DP v Hillingdon.

In a postscript to his judgment, the Judge re-framed the s.48 declaration as a declaration pursuant to s.47 of the MCA and Rule 10.10 of the Court of Protection rules 2017.

S.47(1) provides that the Court of Protection “has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.” One of those powers, the Judge identified (citing s.19 of the Senior Courts Act 1981, Part 25 of the Civil Procedure Rules and Radia v Jhaveri [2021] EWHC 2089 (Ch)), is the power to make declarations or interim declarations. The Judge noted that the Court of Protection Rules, like the Civil Procedure Rules, also provide for interim remedies, including interim declarations (COP Rule 10.10(1)(b)). 

The Judge held that having regard to COP Rule 10.10(1)(b), and applying the terms of s.48(1) and s.47(1) of the MCA, the Court of Protection has the power to make an interim declaration in respect of capacity, and “the fact that sections 15 and 48 of the Act do not provide for interim declarations does not limit the Court’s wider powers, as provided for in section 47” (paragraph 100).

The judgment appears to dispel any suggestion, following DP v Hillingdon, that the Court of Protection cannot make interim declarations about capacity, and it provides a new formulation for interim declarations on capacity that is likely to be adopted by many practitioners going forward. However this does give rise to a couple of considerations:

  1. Where does this leave the approach that the Court has adopted recently in many cases where it records by way of a recital that there is reason to believe that P lacks capacity to make the relevant decision before making an interim order? There is nothing to indicate that this approach is incorrect, although arguably a declaration carries more force than a recital, and having an authoritative statement that the Court has jurisdiction to make the interim order may be something that appeals to parties seeking orders or authorisation of interventions against P’s wishes.

  2. If (as in the Mr K case) no party is seeking to challenge the evidence that has been presented in respect of P’s capacity to make the relevant decision and the Court is satisfied that no further evidence is required in this respect, it could be argued that the Court should first be invited to consider whether it is in a position to make declarations pursuant to s.15 MCA, rather than making interim declarations.

[1] These are sometimes referred to as ‘final declarations’ although this is slightly misleading because, in reality, the question of P’s capacity is always time-specific, and P’s capacity could be reconsidered by the Court at a later date, for example if it is felt that there has been a change in P’s decision-making ability. 

[2] A s.21A application is a challenge to an authorisation of an individual’s deprivation of liberty in a care home or hospital.

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