England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION

		Birmingham Civil Justice Centre
		14th June 2011

His Honour Judge Cardinal:

1. In the autumn of 2010 West Midlands Police sought forced marriage protection orders with regard to three brothers in the G family of whom the applicant [HSG] in this case is one, the others being RG and GG. The cases of the three brothers are currently listed together. All three were said to have varying degrees of learning difficulty and had been or were under threat, it was said, of forced marriage. I granted the injunctions sought but was somewhat surprised that they were sought by the Police when it seemed to me that there ought to have been applications before the court by SMBC and that those applications in reality ought to be in the Court of Protection. I duly joined the Local Authority and made directions [including an inquiry as to why the case was not before the Court of Protection] which led to the cases presently brought in this Court. In the applications before me the Local Authority seeks a declaration inter alia as to the capacity of HSG to marry and to deal with complex financial matters. West Midlands Police remain a party but have been informed with the agreement of all that they need attend no hearings unless and until required so to do.
2. The application before me by HSG now is the 2^nd such application by him. He seeks to be discharged as a party as he claims that he is not appropriately brought before the Court of Protection in the absence of the diagnostic and functional tests under the 2005 Mental Capacity Act ['MCA'] being met. The Official Solicitor acts for his brothers but not as yet for him. He is presently represented by Mr Jon Lloyd of Anthony Collins solicitors and he instructs Ms Davidson of counsel. Both solicitor and counsel are very experienced in litigation before the Court of Protection; so the application is not brought without the benefit of careful consideration. I do not for the purposes of the present application take the point that HSG lacks litigation capacity to instruct his lawyers. His application to be discharged is supported by his Mother through Mr O'Brien of counsel, though when the hearing before me was fixed in late May she supported the Local Authority's application continuing and further information as to HSG being obtained; she is of course entitled to change her mind. The Official Solicitor is neutral in the application. The Local Authority wishes proceedings to continue and has considered [though not yet commenced] an application under the Inherent Jurisdiction, which would have to go before a full Family Division Judge unless released to a section 9 Judge.
3. I have heard in addition from Ms Pratley for the Local Authority and from Ms Isaacs for the Official Solicitor who has been of some assistance in the case to me even though her contributions have been brief, as the Official Solicitor is not at this point the litigation friend of HSG and is neutral as to the application. There is one other party to the litigation- SK, the Wife of RG- who has attended through Mr Gibbons of counsel but who has not made representations and is not a party to this application; although he wishes to make representations in due course as to whether or not the case should be dealt with by a High Court Judge given the potential jurisdictional issues in RG's case [which do not concern me now].
4. In 2007 HSG married TKB in India. The marriage, I am told, has failed and Ms B seeks a divorce. As I was concerned that HSG might not be capable of contracting the marriage itself I have stayed the pronouncement of the divorce decree nisi though I am told that both Husband and Wife seek finality in the marriage [which is childless though possibly consummated]. Were the proceedings regarding HSG to continue, one of the factors to be considered would be whether there should be a nullity decree rather than a divorce so as to avoid any possible disgrace in the Sikh community in the Midlands. I am told HSG would like to remarry on being divorced and the question of capacity would naturally arise again.
5. In December 2010 I refused an application by Mr Lloyd to discharge the proceedings relating to HSG in the absence of clear evidence of incapacity to marry or deal with complex financial issues. I relied on the decision of HHJ Hazel Marshall in Re F [2010] 2 FLR 28, a case to which I return below.
6. No one disputes that there are good reasons for the Local Authority's parallel applications to continue with regard to the other brothers and RG remains currently in supported living accommodation. HSG and GG live with their widowed Mother at the home address.
7. In the course of the applications now before me I directed an expert psychiatric report from Dr Xenetidis ['Dr X'] relating to all three brothers the subject of the Local Authority Court of Protection applications. On 8^th March 2011 I granted an injunction preventing the removal of RG and GG from the jurisdiction. I made other directions which need not concern me here.
8. On the morning of 25^th May 2011 HSG lodged a position statement inviting me to discharge him as a party in the light of the evidence obtained from Dr X to date and in view of the evidence he had lodged. There was not time to deal with the case then and it was re-listed before me on 2^nd June 2011. I permitted a further statement to be lodged by Clive Smewing, social worker, of the Local Authority; unfortunately, and without taking legal advice, he chose not to give the court an updated and more complete assessment on his part alone but rather to approach HSG and interview him briefly at court and then by telephone without reference to HSG's solicitor, for which the Local Authority has apologised. For all that I have decided I should look at that evidence bearing in mind the care with which the court should approach these cases; but I bear in mind that matters adverse to HSG have not been obtained entirely fairly and I should give them little weight [and do so].
9. What does Dr X say of HSG? His report dated 16^th May 2011 is at E98 et seq of the Bundle. He draws the following conclusions:

With regards to the diagnostic test, I am unable at this stage to reach a diagnostic conclusion. …the diagnosis should be revisited in the light of a) detailed developmental, educational and medical history from his records and other sources, and b) neuropsychological and neuroimaging findings and

In the absence of a conclusive diagnosis and therefore capacity assessment I have no recommendations to make at this stage with regard to his best interests.

10. In other words the psychiatrist does not reject the possibility that HSG is unable to conduct litigation, to consent to sexual relations, marriage and divorce or to manage his finances. What he says is that he cannot diagnose HSG as yet and requires further investigations plus revelation of past records etc. He appears to be saying he cannot comment therefore on the functional test under the MCA and accordingly cannot recommend as to best interests.

The law

11. What is the law as to applications before the Court of Protection? I bear in mind the important presumption that a person is presumed to have capacity unless and until the contrary is shown (s.1 (2) of the MCA). By way of s.1 (3), "[a] person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success", or because he makes "an unwise decision" (s.1 (4))
12. Section 2 of the MCA sets out the statutory test for incapacity thus:

"1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to—

(a) a person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

(5) No power which a person ("D") may exercise under this Act—

(a) in relation to a person who lacks capacity, or

(b) where D reasonably thinks that a person lacks capacity,

is exercisable in relation to a person under 16.

(6) Subsection (5) is subject to section 18(3)."

That is the so-called diagnostic test.

13. Section 3 MCA sets put the functional test in that it extrapolates upon the meaning of an inability to make a decision as set out in s.2 of the MCA. Section 3 states as follows:

"(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a) deciding one way or another, or

(b) failing to make the decision."

14. In addition it is only right that HSG should be assessed when in the best state to be so assessed; and of course I cannot make the declarations I am invited to make in due course by the Local Authority unless I am satisfied that the diagnostic tests and functional tests are made out.
15. But what of interim orders? The power of the Court of Protection to make such orders is set out in section 48 of the Act:

"The Court may pending the determination of an application to it in relation to

A person ("P"), make an order or give directions in respect of any matter if –

(a) there is reason to believe that P lacks capacity in relation to the matter,

(b) the matter is one to which its powers under this Act extend, and-

(c) it is in P's best interest to make the order, or give directions , without delay."

16. Following the decision of Her Honour Judge Marshall in Re F I approach the matter by respectfully concurring with the learned Judge's remark that "what is required…is simply evidence to justify a reasonable belief that P may lack capacity in the relevant regard"; and again – "If lack of capacity is clear the point will never be debated. If it is not but is genuinely in doubt then that is just the case in which the court should be able to intervene promptly to enable a fast and efficient determination of the issue."
17. I note that in Re F it was only the legal adviser who considered P lacked capacity whereas here Mr Lloyd believes his client has such capacity although the medical evidence here is as yet inconclusive.
18. In Re F it was held that the evidence required for an interim order under s.48 of the MCA was at a lower threshold than the evidence required under s.15 to make a declaration that the individual lacked the relevant mental capacity. The Judge held (at paragraph 36) that in order to protect vulnerable individuals the gateway test for the engagement of the court's powers under s.48 was lower than that required for evidence sufficient to rebut the presumption of capacity:

"What is required, in my judgement, is simply sufficient evidence to justify a reasonable belief that P may lack capacity in the relevant regard. There are various phrases which might be used to describe this, such as "good" or "serious cause for concern" or "a real possibility" that P lacks capacity, but the concept behind each of them is the same, and is really quite easily recognised."

19. Her Honour Judge Marshall went on to find that there was "a serious possibility" that F might lack capacity in the relevant respects (at paragraph 46).
20. Likewise what is necessary is for the person being reviewed to comprehend and weigh up the salient details relevant to the decision to be made. This much is clear from the judgement of Macur J in LBL v RYJ and others [2010] EWHC 2664.
21. I bear in mind too the matters considered as to capacity to marry by Munby J [as he then was] in Sheffield CC v E & S [2004] EWHC 2808 (Fam) which I summarise as:

i. Does P understand the nature of the marriage contract?

ii. Does P understand the duties and responsibilities that normally attach to marriage?

iii. Does P understand that marriage is a contract, formally entered into, which confers on the parties the status of Husband and Wife, having agreed to live together, to love one another as Husband and Wife, creating a relationship of mutual and reciprocal obligations, typically conferring the sharing of a common home and a common domestic life and the right to enjoy each other's society, comfort and assistance?

22. At this stage the case of the Local Authority is not that HSG can be conclusively be shown to lack capacity but that there is substantial evidence for concern demanding the further investigations suggested by Dr X. In other words even on the Local Authority case it may be that the proceedings after such further investigations have to come to an end. By contrast not only does Ms Davidson seek the discharge of the proceedings and the discharge of the forced marriage injunction, the return of HSG's passport and the granting of the decree of divorce; she also seeks costs on the basis of a gross and unnecessary interference in HSG's life. The latter orders will depend of course on the conclusions I reach as to discharge at this stage, although I confess the attack on the Local Authority with respect to costs does not neatly fit with her concession in her position paper that the Local Authority has acted doubtless for the best of motives.

What is the current state of the evidence?

23. I bear in mind that Mr Jon Lloyd considers his client has capacity and has taken instructions accordingly, no small matter given Mr Lloyd's considerable experience. I have read the statement of HSG doubtless prepared for him by Mr Lloyd.
24. I have already quoted from the conclusions of Dr X. He concludes the position as to the diagnostic test is not clear. Unsurprisingly HSG is most reluctant now to offer himself for any further tests and has declined through his counsel to make himself so available for e.g. psychometric testing. His case is that there is insufficient evidence before the court to justify the case proceeding any further.
25. Dr X of course makes no comment on the functional test although he sets out answers given to him by HSG and briefly comments on his functioning [to which I shall come]. Although he asked HSG about his legal advice [a matter in my view outside the realms of proper inquiry] I do not consider that this has had an adverse impact on the quality or integrity of the report to date.
26. Accordingly the evidence of Dr X is not so much equivocal as incomplete; by contrast all accept that the evidence as to incapacity as to RG and GG is conclusive.
27. Ms Davidson pointed out to me that Munby J in the Sheffield case stated that it was pretty rare for someone to have litigation capacity but not subject matter capacity but her contention is that HSG has both. For my part although I accepted for the purpose of this hearing before me that it is appropriate for HSG to give instructions and for me to hear Ms Davidson on the basis of a capacity to give instructions that does not mean that I conclude of itself that HSG has subject matter or litigation capacity.
28. Ms Davidson characterised the evidence as to HSG's incapacity as scant and speculative at best. I shall therefore look at it in detail:

The medical evidence

29. I have briefly already referred to the independent medical evidence but I turn here first to that of the GP Dr Chaggar who completed the COP 3 form for the Local Authority. I have previously [on Mr Lloyd's former application] concluded the evidence of Dr Chaggar to be rather poor and possibly contradictory. In the COP 3 form [curiously omitted from my present Bundle- but I have seen it before and recall it] he asserts that HSG has learning difficulties and says that as a result he is unable to take long term decisions. He asserts that however without applying the MCA. He does not tick the relevant boxes as to understanding or retaining information etc. He then provided a letter of 29^th November 2010 which states that HSG does not have mental health issues [a somewhat meaningless slang phrase] and that he is not suffering from any mental condition. Those assertions are ambiguous- does the doctor simply mean that HSG is not mentally ill? That would appear to be what he is saying- and mental illness has never been the issue at large in this case, but rather that of disability/incapacity. Ms Davidson describes the letter as rather more helpful. I find it not to be so; on the contrary, though the evidence is not good, the GP appears to consider that there are incapacity questions justifying the case going to the Court of Protection –hence his completion [inadequately] of the COP form although that itself was deemed sufficient by Senior Judge Lush at Archway to give the Local Authority permission to bring the application before the court.
30. I have already quoted from Dr X, who has considered this matter far more carefully. He said in addition:

"There are no early medical or educational records available to me at this stage and there are inconsistencies in the history obtained from the family. Moreover there are no results of neuroimaging (brain scan) or psychometric testing and more specifically neuropsychological testing. The latter would allow for a) the quantification of his intellectual impairment and b) the characterisation (profiling) of such an impairment, in other words defining which cognitive skills in particular are specifically affected. Until such time that the above become available a diagnostic conclusion cannot be reached."

31. Very plainly the doctor was not saying that he could not conclude that HSG lacks capacity but rather that he cannot reach his diagnostic conclusion until such time as the above items become available. I understand that following receipt of this report Ms McFarlane, the solicitor instructed by the Official Solicitor in the matter, made inquiries of Dr X. He said he would like to see a global intellectual test and an executive functioning test- the global test being an IQ psychometric test; the executive functioning test is a series of tests giving an indication of the functioning of the brain in particular the frontal lobe which affects issues such as planning and judgement- such a report would be by a neuropsychologist. But a clinical psychologist with expertise in learning difficulty should be able to conduct the work. Ms Isaacs subsequently informed me that the medical and educational records might reveal a brain injury which could have brought about the deficits from which HSG plainly suffers, whether he be legally competent or not. Some criticism was later made of Ms McFarlane for not disclosing her note of any conversation with Dr X. In this case I make no such criticism of her for my part but set out that as a matter of practice it is a counsel of prudence and best practice to disclose in written form details of all conversations with and responses by an expert.
32. I turn again to the conclusion of the report of Dr X. He is unable as yet to say that the s2 MCA diagnostic test is made out yet and requires further information. Unlike many experts he does not go on to consider the functional test but I accept for my part that he may well have felt unable to proceed without clear evidence as to the diagnostic test. He does not say that the diagnostic test is not made out- indeed the implication is clearly that it may be. The difficulty that I have is that HSG declines to be examined further and to undergo any more testing of the sort I have outlined. What conclusions should I draw in those circumstances? I look at the rest of the evidence to date:
33. The Community Learning Disabilities Nurse Ms Campbell was unable to assist Dr X with regard to HSG saying that HSG was decided to be ineligible through CDLT as he is too able. The difficulty with that is that in my experience the obtaining of Local Authority assistance for the learning disabled has a high threshold; and although my experience is anecdotal only, the truth is that there are many learning disabled adults without such assistance. It does not imply that they have full capacity in all matters.

The lay evidence

34. SKG [HSG's Mother] has stated that HSG's mental development was a bit delayed. She recounted him studying in India but I have no real details of that nor his ability in studying. She initially supported further investigation but has changed her view. She recounts that HSG and his Wife appeared to love each other but noted that Ms Bains abandoned HSG when she obtained a British passport. Through Mr O'Brien she supports the application for discharge of the proceedings related to HSG.

The Local Authority evidence

35. The statements of Mr Smewing on behalf of the Local Authority do not assert that it can be conclusively be established that HSG lacks relevant capacity. But he sets out a number of matters of concern that give good cause for finding that the lower threshold under s48 MCA is met and the court should take the case further. [In fairness HSG has not had the opportunity to counter what Mr Smewing says and I bear that in mind]:

HSG told him that his marriage would end when his wife had a stamp in her passport entitling her to remain permanently in the UK.

HSG has recently told him that he gave directions to a woman at a bus stop and then asked her to marry him, being surprised at her refusal.

On 26^th May he seemed not to grasp that it was for the court and not the social worker to return his passport.

He likewise did not follow why his family were involved in court proceedings.

He has worked briefly in a job [cleaning] where his expenses were greater than his income and Mr Smewing considers he did not realise he was losing money

He was not able to calculate his weekly income

In addition Mr Smewing records that SK [RG's wife] told him that HSG offered her £5 to have sex with him on a number of occasions, becoming persistent in late summer 2010. If that is the case then I agree with Ms Pratley that this shows a lack of understanding of the significance of marriage and of sexual relationships. I note of course that Ms Davidson characterises the family as divided and that SK may [if the divisions are correct] have an axe to grind. But her complaints are consistent with the other matters set out in the bullet points above.

Relevant matters conveyed to Dr X

36. Although the question seems to have been inappropriate, where Dr X asked HSG about his legal advice the response was that he wanted to remarry. Indeed being remarried seemed to preoccupy him to a degree.
37. Basic numeracy caused HSG some difficulty in that he could not undertake the simple multiplication of 3 x 2 and division of 10/2, although he could add 2 plus 5 and 4 plus 9. He recognised coins but could not add with them. He could not calculate his weekly income.
38. Whilst I accept Ms Davidson's point that many ordinary people struggle with mental arithmetic these lacunae in his abilities appear to be far deeper than is the norm even for the unsophisticated.

The arguments

39. Ms Davidson asked me to take no account at all of Mr Smewing's more recent evidence. Certainly I am loath to give it great weight; but it seems to me it nonetheless adds to the overall picture as to HSG's lack of abilities and given that I am dealing with a protective jurisdiction the court should not wholly ignore evidence even that obtained in a manner that I would criticise and without proper notification to HSG's solicitor.
40. She couched the bulk of her submissions on the basis that the functional test of s3 MCA could not be made out [an approach which differed from that of Mr O'Brien for Mother who concentrated on the diagnostic test in supporting the discharge application]
41. She argued that the Local Authority has failed to surmount the lower threshold test set out in s 48 MCA and as described by HHJ Hazel Marshall. She set the matter in the context of the Sheffield decision to which I have referred – arguing that HSG does understand the simple obligations of marriage and that it is in the light of Dr X's opinion premature to proceed any further. There was she said simply no evidence justifying the application continuing in the Court of Protection. Judge Marshall had put it this way:

"The proper test for the engagement of s48 in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility the court then moves on to the second stage to decide what action, if any, it is in P's best interests to take before a final determination of his capacity can be made…Thus there capacity is in itself is in issue [pausing there as in HSG's case] it may well be the case that the only proper direction in the first place should be as to obtaining appropriate specialist evidence to enable that issue to be reliably determined."

42. Ms Davidson argued that there is no evidence that HSG fails the functional test- there is no comment in the psychiatrist's report nor anything to indicate he is so incapable. I beg to differ. I have quoted HSG's rather strange approach to marriage [the proposal at the bus stop] and its obligations. Quite plainly Dr X [who is a very experienced psychiatrist, well-used to writing reports for the Official Solicitor] considers there is a serious possibility that he might lack capacity [the test in Re F] otherwise he would not be seeking further information. I am given to understand that Ms McFarlane invited him to put his queries in his report. It is a pity he did not [as an expert is entitled to do] put his anxieties as to further information needed to the parties before the matter reached me again; but he did not and I am left with an expert seeking more information before he can draw final conclusions. He plainly leaves open the possibility of finding that HSG is not capable of understanding the marriage contract etc. Indeed Dr X sets out at internal page 28 [bottom page E165 of the Bundle] his concerns as to the functioning of HSG. Nothing is as yet certain but the matter is worthy of further investigation.
43. Ms Davidson made the good point that a court must not impose too great a burden on a party in considering the functional test. She cited the relevant passage from LBL v RYJ and others.
44. I have looked at HSG's statement at B255 dated 2^nd December 2010. It avers quite simplistically that his wife to be promised not to divorce him when his Father arranged the marriage but also that there was not a sexual relationship [which would entitle him to a nullity decree]; that he was stressed when interviewed by the police and that he has practical skills. It is not possible for me to draw a firm conclusion as to capacity from that statement alone though I accept of course that Mr Lloyd believes he has capacity.
45. Ms Davidson argues that marriage is a simple relationship to comprehend. As Munby J says in the Sheffield case "marriage…is not something on which the average person needs to obtain either expert advice or expert assistance." That is if I may say so palpably the case. I entirely accept as did the learned Judge that the contract of marriage is a very simple one which a normal person can easily comprehend. I accept too that there are many of borderline capacity whose lives are enriched by marriage. The bar must indeed as Munby J. said not be set too high so as to "operate …an unfair, unnecessary and indeed discriminatory bar against the mentally disabled." The problem with her reasoning however is that I have before me a doctor's report which is based on instructions to deal with the marriage and financial issues which is incomplete as to its inquiries; though there is plainly some evidence as to an incomplete and somewhat irresponsible approach to the married state. The psychiatrist says he wants more information. Ms Davidson criticised that- to determine the cause of a difficulty does not go to its nature and extent, she argued. It is not I think as simple as that. He is not ruling out incapacity either to marry or understand financial affairs. But he is saying that given the cognitive deficits he observed, more information will clarify the extent and depth of the problem.
46. Ms Davidson pointed out that even Dr X's report indicated an understanding of marriage. HSG told him his understanding of the obligations in marriage [E154 of the Bundle, internal page 17 of the Report] and said of the Wife's responsibilities "all the Wife wants is, she wants a Husband not drinking, not doing bad stuff." Ms Davidson suggested this showed the Husband did understand those simple obligations of marriage. Likewise he had an appreciation of sexual fidelity and the place of sexual intercourse between Husband and Wife. But I bear in mind that Dr X could not reach a diagnostic and did not proceed to a functional conclusion and that what the Husband said is put very simplistically. Indeed Dr X goes on to find [page 166 Bundle, internal page 29] that the functioning of HSG is "characterised by judgement and planning deficits (e.g. calling the police when his father asked him to wash his hands), memory difficulties, rigid concrete and perservarative thinking, poor numeracy skills and emotional control problems." In other words what is clear to me is that HSG presents in an acute form the problems faced by this Court of a man who is on the borderline between capacity and incapacity in many areas where fuller information is required before a final conclusion can be drawn by Dr X and the court weighs up that evidence. Ms Davidson argued that HSG understands marriage- and even his reflection that having separated he might not because of this court case be able to marry again would upset him revealed he understood marriage and had the capacity to contract it. Yet reading Dr X's report it seems to me that there are inconsistencies in his understanding such as in his remark that his brothers cannot marry because they cannot travel to distant places- plainly an irrelevance.
47. As to finances, I was invited on behalf of HSG to consider that he would be anxious when interviewed by Dr X [which I accept] and that many struggle with basic mental arithmetic. Even Mr Smewing had accepted that HSG could handle basic supermarket shopping but noted it was as to bills and mortgages that he "does not have a clue." The Local Authority was seeking but an appointee initially. Ms Davidson argued that if one looked at what was conceded and added to that the simple monetary tasks HSG could accomplish plus the absence of Local Authority assistance in his life that it was plain he met the functional tests within section 3 as regards financial matters. Again I cannot put the matter at this stage so definitely as does she. Not only was Dr X unable to turn to the functional test but there are inconsistencies that again point to HSG being of borderline ability- and the question is has that border been crossed? There is no doubt that HSG has some skills- he is for instance able to use a computer; but even that does not necessarily point to relevant mental capacity. There appear to be simplistic tasks he simply cannot perform that seem to me to go further than the failings of an unsophisticated litigant of the kind one regularly encounters, say, in family proceedings.
48. What did Mr O'Brien say? He concentrated on 2 submissions before me:
49. First that it is the diagnostic test that is not made out. Dr X, he argues, had produced no evidence whatsoever of an "impairment of, or a disturbance in the functioning of, the mind or brain." It was "telling" that Dr X could not come to a conclusion after an interview. HSG presents in a functional way. His responses were not outside those of a person with mental capacity. Now I agree that the presentation is troubling. He is certainly of limited capacity at best but he is worryingly inconsistent. I agree that clearly Dr X is troubled because of the further information he seeks. Mr. O'Brien is correct when he reflected on the considerable experience of Dr X. But the doctor well knows the legal presumption of capacity yet did not draw a conclusion from that presumption- he wanted the matter investigated further.
50. Mr O'Brien argued forcefully that in the absence of the diagnostic test being met one should not even have to consider section 3 and the functional test though he did not seek to disagree with Ms Davidson [save as to the emphasis of her approach]. Now whilst that is correct, I look again at Re F- in that case the consultant psychiatrist did not conclude there was incapacity, it was only the solicitor who concluded she did not have capacity to give instructions. I take the view having read Dr X's report and those matters which concerned him [particularly those set out at page 166 of the Bundle which I have set out above], and read of HSG's inconsistencies and simplistic comments and understanding, that there is sufficient evidence to justify a reasonable belief that HSG may lack capacity in the relevant regard. If one were to take Mr O'Brien's powerful submissions to an extreme conclusion then many borderline cases would simply not be investigated. Moreover there are anxieties set out by a medical practitioner here to be further investigated; by contrast in Re F the psychiatrist evinced doubts as to the diagnostic test, which is different from uncertainty of diagnosis.
51. Mr O'Brien raised quite rightly concerns over Article 8 ECHR and the impact of the court interfering with the rights of someone in HSG's position. Was it proportionate to interfere and to seek the further evidence Dr X requires? It seems to me that a reasonable inquiry is inevitable where the court is satisfied the Re F test is made out not least because I next have to move on to consider his best interests. It would be right I deem for the court to have before it the medical, educational and other records relating to HSG. Such an inquiry in that it interferes with the private rights of HSG is reasonable and proportionate in a democratic society where the MCA itself [an Act which is Human Rights Act compliant] permits interference in the life of the mentally disabled citizen.
52. Mr O'Brien went further- obtaining more details as to HSG may amount to a serious breach of his common law right to confidentiality and it would not be appropriate to obtain what may be deeply personal and sensitive documents. I have not had the benefit if any skeleton argument still less case authority on the point, which has not been fully argued before me; but for my part I am used to the Official Solicitor obtaining private documentation which can be treated sensitively and revealed only to an expert to enable him to draw a conclusion as to capacity. I do not think it would be wrong for records to be obtained simply for this purpose and do not accede to the suggestion that past records are to remain confidential. So I will direct the records to be available to Dr X.
53. That leaves the topic of further testing of HSG. Should he be required to attend upon a neuropsychologist or psychologist expert in learning difficulties for psychometric testing etc?
54. It seems to me not improper for the Local Authority to seek a further examination by a psychologist with expertise in learning difficulties. Indeed such a report would be essential in this case so as to inform Dr X. Certainly there is no reason why he should not have obtained and be sent the medical and educational records he needs. That may be enough to establish whether or not there has been a relevant brain injury. If HSG declines to undertake the testing [and he cannot/will not be forced to do so by me] then he risks the argument that adverse inferences be drawn.

Conclusion

55. I conclude that the information available as yet to the court establishes the Court's jurisdiction; for there is a substantial body of evidence which gives good cause to believe that HSG may lack capacity- the test for interim orders is accordingly made out. Moreover it would in my judgement be irresponsible and premature for the court to discharge HSG when the inquiries of Dr X are not complete in circumstances where at least some of his inquiries can be completed without forcing HSG to undergo tests he is declining to undertake. I bear in mind his vulnerability [for example his apparent assertion at one point that his marriage was forced and his alleged bizarre bus stop marriage proposal] which indicates someone on that difficult borderline between capacity and incapacity in important decisions in his life. I take the view as suggested by Ms Pratley that the present application before me poses the same questions as did the Re F case and the tests enumerated by HH Judge Marshall for the court to make an interim order are met.
56. Accordingly the application to discharge fails.
57. There are I think a number of lessons that can and should be drawn from this difficult application:

i. An expert as a matter of good practice ought in my judgement to seek clarifications and raise questions under Rule 129 Court of Protection Rules 2007 before completing a report referring to lacunae in the information before him.

ii. A social worker investigating capacity ought to keep a party's solicitor informed of his intention to interview that party and not just proceed.

iii. It is right to conclude that a party may lack capacity [and thus the test in Re F is met] if there are significant and important gaps in the history and therefore the knowledge of the expert examining that party and there is evidence which may well point to incapacity in the relevant regard.

iv. It is unhelpful for a doctor [in this case a GP] to descend to vague expressions such as mental health issues in a report he/she knows is to go to the court.

v. It is not in my judgement an improper interference with the human or common law rights of a party for a medical expert to be provided with educational health and other records to enable him to complete his inquiries.

vi. I do not accept that psychometric testing is so intrusive as to be an improper test to apply to someone on the borderline of capacity even where he is reluctant to undertake them.

vii. If a solicitor acting for the Official Solicitor discusses the case with a joint expert orally or in writing the instructing parties should be provided with a copy of that communication or attendance note of that conversation.

58. I express my thanks to counsel for the thorough and helpful position statements which I have received and for their assistance in this case.
59. I shall invite counsel to address me on the form of my order and as to further directions regarding medical examination etc plus the issue as to whether or not this matter should proceed before a Judge of the Family Division at the next hearing.