The jurisdiction of the court to make interim orders and give directions(reproduced in full in appendix A)Interim orders:jurisdiction of courtDirections:jurisdiction of courtInterim orders:jurisdiction of courtDirections:jurisdiction of courtInterim orders:jurisdiction of courtDirections:jurisdiction of court
10.4Where an application has been made, the court has jurisdiction to exercise its powers on an interim basis to make orders and give directions where:
•there is reason to believe that P lacks capacity in relation to the matter;
•the matter is one to which its powers under the MCA 2005 extend; and
•it is in P’s best interests to make the order, or give the directions, without delay.
1MCA 2005 s48(a)–(c). 10.5The first of these requirements was interpreted in
Re F2[2009] EWHC B30 (COP), [2009] COPLR Con Vol 390, at para 36 per HHJ Marshall QC, (2009) 12 CCLR 530. as requiring no more than that there be sufficient evidence to justify a reasonable belief that P may lack capacity, or evidence which gives good cause for concern or raises a real possibility that P may lack capacity. This means, therefore, that the court does not need to make a decision as to whether
in fact lacks capacity in the material regard (which would often be impossible at the outset of the proceedings). The decision in
Re F also makes it clear that the threshold that must be crossed is lower than that required (for instance) for the making of a final declaration under MCA 2005 s15.
10.6While MCA 2005 s48 only talks of ‘orders’ and ‘directions’, this includes both decisions and declarations. In other words, assuming that the threshold is crossed, the court can – and will very often – make interim decisions and declarations to ‘hold the ring’ pending the final determination of the application before it. To emphasise the limited basis upon which they are made, interim declarations are very regularly phrased using wording such as: ‘Pursuant to the provisions of section 48 of the Mental Capacity Act, in the interim and on the evidence currently before the Court it is declared that: …’.
(For precedent orders, see www.courtofprotectionhandbook.com/precedents).