SL, Re [2017] EWCOP 5 (31 March 2017)

Paramount Legal CostsCapacity Issues in a DOLS Application issued by a Local Authority

The matter concerned SL aged 60 who suffered from schizophrenia and obsessive compulsive disorder. She had 2 brothers and previously lived with them as well as her mother in housing association accommodation. She had first come to the attention of mental health/social services professionals when there were concerns about self-neglect in around 2012. After her mother died in 2014, it appeared that her condition had deteriorated to such an extent that on 12 March 2015 she was admitted to hospital, initially under section 2 of the Mental Health Act 1983. She was discharged on 9/11/15 into supported living accommodation where she remained. She was subject to a community treatment order as she had a history of not taking her medication.

SL remained consistent in her desire to return home but the Local Authority held the view that it was not in her best interests. An application was made by them for an order authorising the deprivation of liberty occasioned by her care regime using the streamlined procedure under the Mental Capacity Act 2005 (MCA).

The matter came before a District Judge on 12 May 2016 who was not satisfied that the application was suitable to be dealt with under the streamlined procedure and gave directions for a hearing. At the hearing on 12 July 2016 an Order was made inviting the Official Solicitor to act on SL's behalf and a section 49 report was ordered to address SL's capacity to conduct these proceedings and make decisions as to her residence, care and treatment.

A Consultant Old Age Psychiatrist prepared a report dated 27 January 2017 and a number of questions were forwarded to him which he answered in a document dated 13 February 2017. The Expert did not definitively conclude that SL did not have capacity to conduct the proceedings but left the matter for the court to decide. At the hearing on 24 February 2017 the District Judge was invited by Counsel for SL to decide the matter as a preliminary issue.

In a decision dated 31st March, the presiding District Judge concluded that SL lacked capacity to conduct the proceedings and make decisions as to her residence/care/treatment. However the Expert’s opinion was that SL did not lack capacity to manage her property and affairs. The District Judge accepted this opinion and the final order was to include a declaration that SL did not lack capacity to manage her property and affairs.

The full judgment can be read here

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