A Local Authority v LD & Anor.

Section 48 of the Mental Capacity Act 2005 is not confined to emergencies. Its three conditions must all be satisfied before an interim order is made: the matter must fall within the Court of Protection’s powers; there must be evidence giving reason to believe that the person lacks capacity in relation to the matter; and making the order without delay must be in that person’s best interests.

The phrase “reason to believe” requires a threshold below the balance of probabilities. In this case, the judge held that the appropriate minimum likelihood was approximately a 25% chance that a formal assessment would establish incapacity, supported by evidence having a minimum critical mass. The inherent jurisdiction could not justify depriving an obviously capacitous adult of liberty merely because he was vulnerable.

The local authority applied for authority to remove LD, a seriously disabled adult living with his elderly mother, to a place of safety for assessment. Access to LD had been refused for several years, and there were serious concerns about his health, care and welfare.

The application raised two questions: the meaning and scope of the s.48(a) condition under the Mental Capacity Act 2005; and whether, if s.48 did not apply, the High Court could use its inherent jurisdiction to authorise an order depriving a capacitous adult of liberty.

The judge determined the first two statutory conditions. The question whether an order would be in LD’s best interests and necessary without delay was reserved for a separate judgment.

1. Section 48 conditions. The court held that s.48 is not limited to emergency situations. The court must consider whether the matter is within its substantive powers, whether there is reason to believe that P lacks capacity in relation to that matter, and whether it is in P’s best interests to make the order without delay. Even where all conditions are satisfied, the court retains a discretion. (paras [18]–[19])
2. Meaning of “reason to believe”. The expression requires more than mere suspicion but less than certainty or proof on the balance of probabilities. A balance-of-probabilities threshold would make s.48 unnecessary, since the court could then make a substantive declaration under s.15. The judge assessed the threshold as approximately a 25% chance that a formal capacity assessment would establish incapacity, comparable to a real prospect of success. (paras [23], [28]–[30])
3. Evidence. Probability alone is insufficient. The evidence must have a minimum critical mass and must be assessed as a whole, using common sense. The evidence in this case, including the social worker’s expert opinion and the available information about LD’s longstanding impairments, satisfied the s.48(a) condition. (paras [31]–[33])
4. Section 48(b). The proposed removal for assessment concerned LD’s welfare and was plainly within the Court of Protection’s jurisdiction. The court therefore had power to make coercive orders against RD if the remaining statutory condition was satisfied. (para [34])
5. Inherent jurisdiction and liberty. The question concerning the inherent jurisdiction was academic on the facts. Nevertheless, where the evidence clearly showed that an adult was capacitous and did not suffer from a mental disorder, the judge could not identify a separate category of “unsound mind” under article 5 justifying deprivation of liberty. Any wider gap in protection for fully capacitous but vulnerable adults was a matter for Parliament, not judicial legislation. (paras [40]–[42])