Lioubov MacPherson v. Sunderland City Council

Factual and Procedural Background

The Appellant is the mother of a protected person ("P") who suffers from paranoid, treatment-resistant schizophrenia and has been subject to Court of Protection proceedings for several years. Injunctions were imposed in 2022 and 2023 prohibiting the Appellant from posting material relating to P on social media and other platforms. The Appellant admitted breaching these injunctions, resulting in a suspended sentence of imprisonment in January 2023. Despite the suspended sentence, the Appellant continued to post prohibited material after relocating to France in September 2023. This led to fresh committal proceedings and the Appellant being sentenced to immediate imprisonment in January 2024 for contempt of court, totaling four months when combined with the suspended sentence. The Appellant appealed the committal order and the current proceedings concern preliminary issues relating to her capacity to conduct the appeal.

Legal Issues Presented

1. Whether there is reason to believe that the Appellant lacks capacity to conduct the appeal against the committal order.
2. Whether the Court of Appeal has the power to make an interim declaration under section 48 of the Mental Capacity Act 2005 pending a full capacity assessment.
3. Whether it is in the Appellant's best interests to make such an interim declaration and to refer the issue of capacity to a Court of Protection judge for determination before proceeding with the substantive appeal.

Arguments of the Parties

Appellant's Arguments

• The Appellant strongly opposed undergoing any form of capacity assessment in England and expressed willingness, albeit unclear, to be assessed in France.
• She alleged that her legal team had made false notes and lied about her refusal to cooperate with the assessment.
• The Appellant asserted that her refusal to be assessed was based on her belief that her daughter had been wrongly assessed as lacking capacity by an independent psychiatrist.
• She expressed frustration and anger about delays in the appeal process, describing them as intolerable.

Respondent's Arguments

• The Respondent supported the option that the Court should make an interim declaration that the Appellant lacks capacity and refer the matter for a full capacity assessment.
• The Respondent emphasized the importance of ensuring the Appellant has appropriate representation through the Official Solicitor if she lacks capacity.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court considered the paper-based psychiatric report which indicated a possibility of a delusional disorder affecting the Appellant's ability to use and weigh information relevant to the proceedings, thus raising a reason to believe she lacked capacity to conduct her appeal. Recognizing the limitations of a paper assessment and the Appellant’s refusal to cooperate with a direct assessment, the Court found insufficient evidence to make a final declaration of incapacity. However, applying section 48 of the Mental Capacity Act 2005 and relevant Court of Protection and Civil Procedure Rules, the Court concluded it had the power to make an interim declaration and refer the issue of capacity to a Tier 3 Court of Protection judge for a full determination. The Court balanced the need to avoid further delay with the importance of ensuring the Appellant’s rights are protected, particularly given the liberty interests involved and the potential for continued imprisonment. The Court also emphasized the necessity of representation through the Official Solicitor if incapacity is confirmed.

Holding and Implications

The Court made the following holding:

• There is reason to believe that the Appellant lacks capacity in relation to the conduct of her appeal.
• The Court made an interim declaration under section 48 of the Mental Capacity Act 2005 to that effect.
• The issue of the Appellant's current capacity and her capacity as of the committal hearing date is referred to a Tier 3 Court of Protection judge for determination.
• The Official Solicitor is invited to act as litigation friend on an interim basis.
• The stay of the Appellant’s imprisonment sentence is continued, and the bench warrant is discharged pending further order.

Implications: This decision temporarily suspends the enforcement of the imprisonment sentence pending a full capacity assessment, ensuring the Appellant’s right to fair representation and procedural fairness in the appeal process. No new legal precedent is established beyond affirming the Court of Appeal’s power to make interim declarations and refer capacity issues under the Mental Capacity Act 2005 and relevant procedural rules.