Lioubov MacPherson v Sunderland City Council

Where an appeal raises a genuine issue about a party’s litigation capacity, the issue must be determined, but a final declaration should not be made without sufficient evidence. Section 48 of the Mental Capacity Act 2005 permits interim relief only where there is reason to believe that the person lacks capacity in relation to the matter, the matter falls within the court’s powers, and it is in the person’s best interests to act without delay. In a Court of Protection appeal, the Court of Appeal has the powers of the first-instance judge, including power to refer the capacity issue for determination. Capacity assessments must address the functional question first and the diagnostic question second. Interim protective arrangements may be made pending final determination.

Lioubov MacPherson appealed from an order of Poole J in the Court of Protection imposing an immediate four-month custodial sentence for contempt of court. The appeal raised a preliminary issue concerning her capacity to conduct the proceedings.

Following concerns expressed by her legal representatives and a paper-based psychiatric assessment, the Court of Appeal rejected making either a final declaration that she had capacity or a final declaration that she lacked capacity. The central issue was whether the Court of Appeal could make an interim declaration under the Mental Capacity Act 2005, and refer the capacity questions to a Court of Protection judge before the substantive appeal was heard.

Disposition. The Court of Appeal, in a judgment delivered by King LJ with which Asplin LJ and Birss LJ agreed, made an interim declaration that there was reason to believe that the appellant lacked capacity in relation to the conduct of her appeal. It referred her current capacity and her capacity as at 22 January 2024 to a Tier 3 Court of Protection judge. The substantive appeal was adjourned.

1. Section 48 threshold. Section 48 of the Mental Capacity Act 2005 requires more than an issue being raised. The court must have reason to believe that the person lacks capacity in relation to the matter, the matter must fall within the Act’s powers, and it must be in the person’s best interests to make the order or give directions without delay. An interim declaration is therefore not inevitable whenever capacity is questioned.
2. Capacity assessment. The court applied the approach in A Local Authority v JB [2021] UKSC 52; [2022] AC 1322. The assessment must first address the functional question under section 3 of the Act, then whether the inability to decide is caused by an impairment or disturbance of the functioning of the mind or brain under section 2(1). The second stage requires a clear causative nexus. The court also relied on Hemachandran v University Hospitals Birmingham NHS Foundation Trust [2024] EWCA Civ 896 in holding that assessments should follow that sequence despite the inconsistent unimplemented Code of Practice.
3. Appellate powers and best interests. Under the Court of Protection Rules 2017, the appeal judge has all the powers of the first-instance judge, including power to refer an issue for determination. The same result could be achieved in other Court of Appeal appeals under the Civil Procedure Rules 1998. Although the evidence did not justify a final declaration, further assessment and interim representation were in the appellant’s best interests because the appeal concerned her liberty.
4. Orders. The Official Solicitor was invited to act as interim litigation friend. The stay of the custodial sentence continued, the bench warrant was discharged, and the appeal was adjourned. The June 2023 injunctions remained in force.

• Court of Appeal (Civil Division). On the preliminary capacity issue, the court made an interim declaration, referred the capacity questions to a Tier 3 Court of Protection judge, continued the stay, discharged the bench warrant and adjourned the substantive appeal: [2024] EWCA Civ 1579.
• Court of Protection. Poole J imposed an immediate four-month custodial sentence for contempt on 22 January 2024: [2024] EWCOP 8. The earlier contempt proceedings and suspended sentence were addressed in [2023] EWCOP 3.