Test case

HHJ Cardinal accepted that it was appropriate for HSG to give instructions to lawyers, but that did not mean that he was concluding that HSG had subject-matter (or, indeed, litigation) capacity.

In addition to Dr X’s report, the judge recalled an assessment of capacity in Form COP3 previously prepared by HSG’s general practitioner. He had on an earlier occasion considered that assessment “rather poor and possibly contradictory”. The COP3 asserted that HSG had learning difficulties and, as a result, was unable to take “long-term decisions”. That assertion was made, however, without applying the MCA tests. In a supplemental letter, the GP had stated that HSG did not have “mental health issues” – an expression that the judge dismissed as “a somewhat meaningless slang phrase” – and was not suffering from “a mental condition”. It appeared, therefore, that the GP had simply been saying that HSG was not mentally ill. Nevertheless, the judge considered that the evidence indicated that the GP considered that there were incapacity questions justifying the case going to the Court of Protection.

Dr X’s report was not so much equivocal as incomplete: the doctor was not saying that he could not conclude that HSG lacked capacity but rather that he could not reach his diagnostic conclusion without further information. It was not Dr X’s evidence that the diagnostic test was not made out; indeed, the implication was clearly that it might be. The difficulty that the judge faced was HSG’s refusal to be examined further or to undertake the tests required. In the circumstances, the judge had to look to the lay evidence.

HSG’s mother accepted that his mental development was ‘a bit delayed’, but supported his application to be discharged as a party. The local authority adduced the evidence of a social worker. His evidence included the assertions that HSG had told him that his marriage would come to an end when his wife had a stamp in her passport allowing her to remain in the UK; that HSG had told him that he had given directions to a woman at a bus stop and then asked her to marry him, but was surprised at her refusal; and that HSG’s sister-in-law had told him that HSG had offered her £5 to have sex with him on a number of occasions. Although he was loath to give great weight to the evidence, the judge held that it nonetheless added to the overall picture as to HSG’s lack of abilities and he should not wholly ignore it.

It was argued on HSG’s behalf that the local authority had failed to surmount the section 48 threshold because there was no evidence that HSG failed the functional test. The judge disagreed, referring to HSG’s “rather strange approach to marriage” and Dr X’s belief that there was a “serious possibility” that HSG lacked capacity.

The judge found that HSG “presents... the problems faced by this court of a man who is on the borderline between capacity and incapacity... where fuller information is required”. Although ?he clearly had some skills (such as the ability to ?use a computer), the judge found that there appeared to be simplistic tasks that HSG simply could not perform that went further than the failings of an unsophisticated litigant. All of these suggested the real possibility of a failure to satisfy the functional test.

Counsel for HSG’s mother went further and argued that the local authority had not even made out the diagnostic test. It was argued that, in the absence of meeting the diagnostic test, one should not even consider the functional test. The judge agreed. Nevertheless, he was of the view that there was sufficient evidence to justify a reasonable belief that HSG might lack capacity in the relevant regard (the Re F test). If one were to take the submissions made on behalf of HSG’s mother ?to an extreme conclusion, many borderline cases would not be investigated.

Concerns were raised regarding the potential infringement of HSG’s right to a private life under article 8 of the ECHR by seeking the further evidence required by Dr X. However, it was inevitable to make reasonable inquiries where the court was satisfied that the Re F test had been satisfied. Such inquires were necessary in order to enable the court to carry out a best-interests assessment. They were reasonable and proportionate in a democratic society.
It was also argued that obtaining more information relating to HSG would breach his common-law right to confidentiality. However, although the matter was not argued fully before him by reference to judicial authority, the judge was satisfied that private documentation could (and regularly was) treated sensitively and that it would not be wrong for records to be obtained and disclosed to Dr X solely for the purpose of enabling him to draw a conclusion as to capacity.
The judge also held that it was not improper for the local authority to seek further examination by a psychologist with expertise in learning difficulties for the purposes of carrying out psychometric testing. Such an examination was essential in order to inform Dr X. HSG could not, however, be forced to undertake the testing – but a refusal to submit to such testing could lead to adverse inferences being drawn. n