SMBC v WMP  EWHC B13 (COP)
HSG's application to be discharged as a party in a forced marriage protection order case was refused because there was good cause to believe that he may lack capacity (the test for interim orders). The judge set out a list of lessons learnt for future cases. [Summary required.]
Extract from judgment
57. There are I think a number of lessons that can and should be drawn from this difficult application:
- i. An expert as a matter of good practice ought in my judgement to seek clarifications and raise questions under Rule 129 Court of Protection Rules 2007 before completing a report referring to lacunae in the information before him.
- ii. A social worker investigating capacity ought to keep a party's solicitor informed of his intention to interview that party and not just proceed.
- iii. It is right to conclude that a party may lack capacity [and thus the test in Re F is met] if there are significant and important gaps in the history and therefore the knowledge of the expert examining that party and there is evidence which may well point to incapacity in the relevant regard.
- iv. It is unhelpful for a doctor [in this case a GP] to descend to vague expressions such as mental health issues in a report he/she knows is to go to the court.
- v. It is not in my judgement an improper interference with the human or common law rights of a party for a medical expert to be provided with educational health and other records to enable him to complete his inquiries.
- vi. I do not accept that psychometric testing is so intrusive as to be an improper test to apply to someone on the borderline of capacity even where he is reluctant to undertake them.
- vii. If a solicitor acting for the Official Solicitor discusses the case with a joint expert orally or in writing the instructing parties should be provided with a copy of that communication or attendance note of that conversation.
Before: HHJ Cardinal
Ms M Pratley (instructed by Legal Department SMBC) for the Applicant
Ms L Davidson (instructed by Anthony Collins) for HSG
Mr J O'Brien (instructed by Irwin Mitchell) for SK
Ms E Isaacs (instructed by CMHT) for the Official Solicitor
SMBC v WMP, RG, GG, HSG, SK, SKG
Also reported as: A Local Authority v RG, GG, HSG and Others