DA v DJ

Under section 48 of the Mental Capacity Act 2005, the interim gateway is distinct from the final determination of capacity. The court requires evidence giving reason to believe that the person may lack capacity, rather than evidence sufficient to rebut the presumption of capacity finally. Prima facie credible evidence, including hearsay, witness accounts and expert opinion based on documents, may suffice. The person’s voice is relevant but need not always be obtained before the gateway is passed, particularly where engagement would cause delay or frustrate protection. Once the gateway is established, the court must decide whether directions or an order are in the person’s best interests and should be made without delay.

The applicant, an adult child supported by his siblings, sought interim directions concerning DJ, an adult woman who was not aware of the application and had not been assessed. The evidence described serious deterioration in her behaviour, possible psychiatric disorder, cocaine use, self-neglect and paranoia. A psychiatrist gave a provisional opinion based on witness statements and messages, without seeing DJ.

The central issue was whether the evidence satisfied the section 48 gateway and, if so, whether directions for psychiatric and medical assessment were in DJ’s best interests.

1. The court had jurisdiction under section 48 of the Mental Capacity Act 2005. The statutory phrase “reason to believe” requires evidence upon which a belief can be formed. The evidence need be prima facie credible and the court may draw reasonable inferences from established or provisionally established facts.
2. The interim threshold is lower than the evidence required for a final declaration of incapacity. The court adopted the approach in Re F [2009] EWHC B30 (Fam): evidence giving good cause for concern, or raising a serious possibility that P may lack capacity in the relevant matter, can engage section 48.
3. The court declined to follow the more restrictive approach expressed in Wandsworth LBC v A McC [2017] EWHC 2435 (Fam). It was unnecessary in every case to explain the assessment process to P or hear P’s voice before deciding whether the gateway was passed. Those matters were relevant to the overall assessment, but their importance depended on the facts.
4. Hearsay was admissible under rule 95 of the Court of Protection Rules 2007. The court, not the experts, determined capacity, although expert evidence could assist. The consistent accounts of four witnesses, supporting messages and the psychiatrist’s assessment provided sufficient reason to believe that DJ might lack capacity.
5. It was in DJ’s best interests to give directions without delay for an independent psychiatric and medical assessment, disclosure and related case management. The proposed order was proportionate and measured.

First instance decision in the Court of Protection. No appellate history was stated.