True picture

A recent case about capacity proves the importance of disclosing all relevant medical evidence to the court, says Eddie Fardell

All applications to the Court of Protection for the appointment of a deputy must include a COP3 medical assessment of capacity, which is usually completed by a suitably qualified medical practitioner. The COP3's significance cannot be overstated: the outcome will determine whether or not a deputy should be appointed for 'P'.

It is crucial that all relevant medical evidence is made available to the court when considering a deputyship application. This is of particular importance in borderline capacity cases and there is conflicting medical evidence.

The recent case of Loughlin v Singh [2013] EWHC 1641 (QB) considered the question of capacity in some detail and raised a number of important points for practitioners. Parker J's judgment contained a detailed review of various questions around evidence of capacity, and is a recommended read, especially for anyone dealing with borderline cases. It also considered the requirement to provide the Court of Protection with all relevant medical evidence when making an application for appointing a deputy.

The case concerned a road traffic accident involving the claimant, Kristopher Loughlin (aged 12 at the time of the accident in 2002), who sustained serious injuries when he was struck by a vehicle while riding his bike.

Parker J looked at capacity in light of the conflicting evidence of several experts. Of note was the exclusion of Professor Michael Barnes' evidence. Professor Barnes was instructed by the claimant's solicitors to assess Kristopher's capacity to manage his property and financial affairs. He provided two reports on the matter, the first in January 2009 and the second in October.

Evidence rejected

January's report was prepared following a visit to Kristopher and concluded that he retained capacity. October's report, in direct contrast, concluded that he lacked capacity. The two reports were otherwise identical. There was no reference to the first report in the second one. While providing oral evidence at trial, it became apparent that the new report was not based on any new evidence. Parker J concluded that Professor Barnes' evidence was "so unreliable that it should be rejected".

Significantly, Professor Barnes' first report was not provided to the Court of Protection when an application for the appointment of a deputy was made. Nor was the report of Dr Huddy, which was commissioned by the Court of Protection team at the claimant's solicitors' firm and also concluded that Kristopher retained capacity. There is, of course, the opportunity at paragraph 7.7 of the COP3 form to confirm whether or not the person completing the form is aware of any conflicting views about capacity.

In his concluding paragraphs, Parker J said "this was a case where all available medical evidence relevant to the issue of capacity should have been disclosed to the court". Professor Barnes should also have been provided with a copy of the report of Dr Huddy. With conflicting evidence on capacity, undoubtedly the Court of Protection would have called for an oral hearing on the issue rather than deciding the matter on the papers.

As it was, Parker J concluded that Kristopher did in fact lack capacity therefore the deputy did not need to be discharged in this instance.

Full range

The case highlights the importance of providing the court with a true picture of the range of medical opinion about P's capacity. The COP3 provides an opportunity to consider conflicting evidence. It is only right that all evidence is before the court when deciding a matter as significant as whether or not its jurisdiction should be invoked, and P's access to their finances restricted.

After all, the court's overriding aim is to ensure that all decisions are made in P's best interests. All deputyship orders are drafted on this basis to be as non-restrictive for P as possible.

This case is a sharp reminder to all those involved in applying to the Court of Protection, whether for the appointment of a property and affairs deputy, as in Loughlin, or any other such application: ensure that all relevant information is provided to the person drafting the COP3 – and, ultimately, to the court.

Eddie Fardell is a partner and head of the Court of Protection team at Thomson Snell & Passmore

He writes a regular blog about the Court of Protection for Private Client Adviser