Re F [2009] EWHC B30 (Fam)

The "gateway" test for the engagement of the court’s powers under s48 (Interim orders and directions) is lower than that of evidence sufficient, in itself, to rebut the presumption of capacity. The proper test in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility, the court then moves on to the second stage to decide what action, if any, it is in P's best interests to take before a final determination of his capacity can be made.

Other

Hearing: 28 May 2009

Judgment: 26 June 2009

Before: HHJ Marshall QC

Mr Stephen Cragg (instructed by Irwin Mitchell Solicitors) for the Appellant

No other party appeared on the appeal

Summary from Court of Protection 2009 Report

The proper test for the engagement of s 48 in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility, the court then moves on to the second stage to decide what action, if any, it is in P’s best interests to take before a final determination of his capacity can be made. Such action can include not only taking immediate safeguarding steps (which may be positive or negative) with regard to P’s affairs or life decisions, but it can also include giving directions to enable evidence to resolve the issue of capacity to be obtained quickly. Exactly what direction may be appropriate will depend on the individual facts of the case, the circumstances of P, and the momentousness of the urgent decisions in question, balanced against the principle that P’s right to autonomy of decision-making for himself is to be restricted as little as is consistent with his best interests. Thus, where capacity itself is in issue, it may well be the case that the only proper direction in the first place should be as to obtaining appropriate specialist evidence to enable that issue to be reliably determined.

Citations

In Re F [2009] WTLR 1309 (Her Honour Judge Hazel Marshall QC, 26 June 2009)

Re F (2009) COP 11649371

Duplicate Bailii citation number: [2009] EWHC B30 (COP)!

External link

Bailii

Court of Protection: 2009 Report - published 10/6/10 - Summary on page 16