EWJ August 62 2025 web - Journal - Page 45
Determining Capacity In the Right Order?
by Joanna Lamb - www.clydeco.com
An interesting Court of Appeal judgment was handed
down earlier this year in the matter of MacPherson v
Sunderland City Council [2024] EWCA Civ 1579 which
concerned the capacity of Ms MacPherson to conduct
proceedings.
Ms MacPherson’s daughter had been the subject of
Court of Protection proceedings for a number of
years. In January 2023, Ms MacPherson had been
found to be in contempt of court by the judge for
breaching injunctive orders regarding posting material on the internet relating to her daughter.
Ms MacPherson was given a suspended sentence
which she attempted to appeal but was denied permission. At this point, Ms MacPherson had moved to
France and continued to post videos on social media
in breach of the injunction. As a result, a judge issued
a bench warrant for her arrest.
Following this, Ms MacPherson sought to make an
appeal against the outcome of the committal proceedings. During a conference with her solicitor and
Counsel, both lawyers had concerns about Ms
MacPherson’s capacity to conduct proceedings. Her
legal team invited Ms MacPherson to engage in a
capacity assessment but this invitation was strongly
rejected by Ms MacPherson.
As a result, an application was made by her solicitor
under CPR 35.4 to instruct an expert to undertake a
desktop assessment of Ms MacPherson’s capacity to
conduct proceedings. The application was successful
and the expert concluded on the balance of probabilities, there was evidence of persistent persecutory
ideation relating to various professionals and
institutions.
The Court of Appeal, at a hearing in December 2024,
ultimately decided to make an interim declaration that
there is a reason to believe that the Appellant lacked
capacity in relation to the conduct of her appeal
against the committal order and the matter ought to
be referred to a Tier 3 (High Court) Judge for determination, with the Official Solicitor acting as litigation
friend.
Of note within the judgment, the court was keen to
point out that any report on capacity approaching the
question about whether a person is able to make a decision about a matter for the purposes of s2 Mental
Capacity Act 2005 should refer to the judgment in A
Local Authority v JB [2021] UKSC 52; [2022] AC
1322. Specifically, that the determination of capacity
ought to be considered in the following order: -
