(Court of Protection: HHJ Marshall QC; 28 May 2009)
While the 'presumption of capacity' reinforced the general approach of the Mental Capacity Act 2005, that a person's basic right to have the power to make decisions for him or herself was to be respected and protected, and could only be displaced by sufficient evidence establishing that he or she did not have capacity in the relevant respect, such a finding was what ultimately grounded a formal declaration under s 15 of the Act, and s 48 expressly conferred powers on the court to take steps 'pending' the determination of that question.
It followed that the evidence required to found the court's interim jurisdiction under this section must be something less than that required to justify the ultimate declaration. The 'gateway' test for the engagement of the court's powers under s 48 must therefore be lower than that of evidence sufficient, in itself, to rebut the presumption of capacity.
The proper test for the engagement of s 48 in the first instance was whether there was evidence giving good cause for concern that the person might lack capacity in some relevant regard. Once that was raised as a serious possibility, the court then moved on to the second stage to decide what action, if any, it was in the person's best interests to take before a final determination of his or her capacity could be made.
Such action could include not only taking immediate safeguarding steps (which might be positive or negative) with regard to the person's affairs or life decisions, but it could also include giving directions to enable evidence to resolve the issue of capacity to be obtained quickly. Exactly what direction might be appropriate would depend on the individual facts of the case, the circumstances of the person, and the momentousness of the urgent decisions in question, balanced against the principle that the person's right to autonomy of decision-making for himself was to be restricted as little as was consistent with his best interests. Thus, where capacity itself was in issue, it might 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.