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: -

  1. Whether P is unable to make a decision for himself in relation to the matter [65- 77] (s.3 MCA 2005– the functional test).
  2. ii) The inability to make a decision is “because of” an impairment of, or disturbance of the functioning of, the mind or brain (s.2(1) MCA 2005– the diagnostic or mental impairment test).

When having an expert opine on a claimant’s capacity, solicitors ought to be mindful that the correct order of the capacity test has been applied. As set out by Lord Stephens, the second question looks to whether there is a clear causative nexus between P’s inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P’s mind or brain.

A copy of the judgment can be accessed here: MacPherson v Sunderland City Council (Rev1) [2024] EWCA Civ 1579 (18 December 2024)

Joanna Lamb is an Associate in the catastrophic and large loss injury team based in Manchester and a member of the Capacity & Court of Protection subject matter group.