In SMBC v WMP and others [2011] EWHC B13 (CoP), the focus of the case was whether at an interim hearing, in the absence of clear evidence of incapacity, the Judge should discharge the proceedings. A person is presumed to have capacity on the balance of probabilities and, for a final order, tests have to establish lack of capacity before a declaration can be made. But what factors have to be weighed up for an interim decision?

In this case the applicant’s (A) capacity to marry and to deal with everyday budgeting had to be determined. West Midlands Police had sought forced marriage protection orders for A and his two brothers as the local authority (LA) had serious concerns about A’s capacity to marry and the effect of family pressure for him to take part in an arranged marriage. HHJ Cardinal joined the LA and transferred proceedings to the Court of Protection (CoP) when it became clear that capacity was an issue.

Later, A applied to be discharged as a party and claimed the CoP was not the appropriate forum as diagnostic and functional tests under the Mental Capacity Act 2005 (the Act) had not established lack of capacity. His widowed mother, whom he lived with, supported him, and the family plan was for him to marry after his divorce from his current wife was finalised. He also applied for the discharge of the forced marriage injunction, the return of his passport and a decree to end his marriage, which had taken place in India in 2007. Until capacity could be decided the divorce proceedings were stayed, as there was a question over whether, in 2007, he had capacity to marry. If he did not, nullity proceedings were the proper procedure.

The professional evidence was problematic. The GP who completed the COP3, the essential gateway document to the CoP, which certifies incapacity, provided a poor analysis of mental capacity. The Judge found that the form was contradictory, used meaningless slang, was not properly complete and addressed the wrong issues, but it did in parts raise incapacity questions that justified the case going to the CoP. HHJ Cardinal directed a further report from Dr B, a psychiatrist, who was unable to provide a diagnostic conclusion. He needed further information on A’s medical and developmental history, and further tests. At the hearing, he could not make a recommendation as to A’s best interests, but did not reject the possibility that A lacked capacity to marry or manage his life. He needed more information before he could reach a conclusion. The Judge was also presented with the complication that A was refusing to take part in any future tests.

‘It is right that the burden of proof on capacity is lower at the directions hearing’

The starting point for interim decisions is set out in s48 of the Act: ‘The court may, pending the determination of an application… make an order or give directions… if there is reason to believe that P lacks capacity… and it is in P’s best interests to make the order, or give the directions.’

HHJ Cardinal then looked at the decision in Re F [2010] 2 FLR 28, where s48 was applied. The evidence required a lower threshold for an incapacity declaration than for a final order: ‘What is required is simply sufficient evidence to justify a reasonable belief that P may lack capacity.’

The other evidence in A’s case was then weighed up. The LA’s concerns about A’s understanding of marriage included A telling them the marriage would end when his wife got leave to remain, A asking a woman at a bus stop to marry him, A not knowing why his family was involved in the proceedings and A asking his sister-in-law to have sexual intercourse with him for GBP5. On financial management, he could not calculate his weekly income and was unable to realise when he was losing money. A said his current marriage was arranged and had not been consummated.

HHJ Cardinal found A showed signs of being a borderline case on mental capacity rather than an unsophisticated litigant. Although further diagnostic evidence interfered with his rights according to article 8 of the European Convention on Human Rights, the Act permits such interference in the life of a mentally disabled citizen. The court had to determine whether A had crossed the borderline. It would be premature and irresponsible for the court to discharge A when Dr B had not completed his enquiries. Although A would not be forced to undertake tests, adverse inferences might be drawn if he refused.

An additional problem came to light during the hearing. The social worker had interviewed A briefly without reference to A’s solicitor to prepare a further statement. The evidence was allowed but less weight was attached to it as matters adverse to A in it had not been obtained entirely fairly.

After deciding to allow the further diagnostic evidence, the Judge set out important lessons to be drawn from the case:

• An expert should seek clarification and raise questions before completing a report referring to gaps in the information.
• A social worker investigating capacity should inform the party’s solicitor of their intention to interview that party.
• It is right to find that a party may lack capacity if there are gaps in the history, and therefore the expert’s knowledge and evidence, which may point to incapacity.
• A doctor who uses vague expressions in a report is unhelpful.
• It is not an interference with a party’s human or common-law rights for a medical expert to be given their records.
• Psychometric testing is not an improper test even when someone on the borderline of capacity is objecting to them.
• A solicitor acting for the official solicitor should provide the other instructing parties with an attendance note or a copy of communications with a joint expert.

This was an interesting case balancing an individual’s right to autonomy and the CoP’s position of protecting the vulnerable. Those who are deemed limited or eccentric, or who make bad decisions, fall outside the CoP’s ambit as long as they are not certified as incapable. A believed he was able, but were others leading him into choices against his best interests? Only further evidence could determine whether A’s belief he should decide his future was justified.

Logically, it is right that the burden of proof on capacity is lower at the directions hearing, as it will lead to no permanent decision on a party’s future. The delay in A marrying was less harmful than him being married to a stranger from overseas because his incapacity left him unable to protect himself from exploitation and abuse. The insufficient evidence on capacity did not remove the case from the CoP’s jurisdiction at the directions stage when experts did not rule out incapacity and other evidence supported it.

Starting in the West Midlands as a forced marriage protection order with an immigration aspect, this contemporary family issue has opened the window on how the CoP is adjusting to modern life.