MB, Re

MB, Re

Given the significance of the decision and the possibility of further litigation if Dr Layton's opinion is too optimistic, a second expert report is warranted to resolve the evidential issues regarding MB's capacity, particularly the weighing process and implications of fluctuating capacity.

Parties
Applicant: MB; Respondent: SCC; Respondent: C & A CCG
Jurisdiction
England and Wales
Judgment Date
14 August 2017
Procedural Posture
Application / Interlocutory Judgment on Expert Evidence and Capacity Assessment
Outcome
Second expert report on capacity ordered; applications to introduce late evidence refused.
Legal Topics
Deprivation of Liberty, Capacity Assessment, Expert Evidence, Care Planning
Mental Capacity Court of Protection Health Law Deprivation of Liberty Capacity Assessment Expert Evidence Care Planning

Case Brief

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Parties

MB

Applicant

SCC

Respondent

C & A CCG

Respondent

Procedural Posture

Application / Interlocutory Judgment on Expert Evidence and Capacity Assessment

Legal Issues

  1. 1 Whether MB has capacity to make decisions about residence and care
  2. 2 Whether a second expert report on capacity is required
  3. 3 Implications of fluctuating capacity for court jurisdiction

Ratio Decidendi

Given the significance of the decision and the possibility of further litigation if Dr Layton's opinion is too optimistic, a second expert report is warranted to resolve the evidential issues regarding MB's capacity, particularly the weighing process and implications of fluctuating capacity.

Court Disposition

Second expert report on capacity ordered; applications to introduce late evidence refused.

Orders

  • A second expert report from an expert with relevant clinical background is to be obtained.
  • Letter of instruction for the second expert to be tightly drafted focusing on evidential issues.