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Test case

A refusal by P to undertake an assessment of capacity may not have ?the desired effect, as the Court of Protection case of SMBC v WMP shows. Joseph Goldsmith reports

17 October 2011

Before it can exercise its substantive jurisdiction to make decisions for or on behalf of a person (P), the Court of Protection must be satisfied that P lacks capacity under section 2 of the Mental Capacity Act 2005 (MCA). However, pending the determination of an application in relation to P, the court may (under the interim jurisdiction conferred by section 48 of the MCA) make an order or give directions in relation to any matter if there is ‘reason to believe’ that P lacks capacity in relation to the matter and it is in P’s best interests to make the order, or give directions, without delay.

It was established in Re F [2010] 2 FLR 28 that the ‘reason to believe’ test in section 48 does not require the court to satisfy itself to the same standard as is required in order to engage its substantive jurisdiction. Instead, “what is required... is simply evidence to justify a reasonable belief that P may lack c...

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