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Part XXI: Applications Under The Mental Capacity Act

147. Transfer of mental capacity proceedings to District Court

(1) The Supreme Court of Judicature (Transfer of Mental Capacity Proceedings to District Court) Order 2010, made under section 28A of the Supreme Court of Judicature Act (Cap. 322), came into operation on 1 March 2010 (“the Transfer Order”).

(2) Pursuant to the Transfer Order –

(3) Pursuant to the Family Justice Act 2014, with effect from 1 October 2014, proceedings under the MCA shall be heard and determined by the Family Justice Courts. Notwithstanding this, any proceedings under the MCA commenced in the High Court before 1 October 2014 shall, on and after that date, be continued in and dealt with by the High Court.

(1) All documents relating to mental capacity proceedings which are to be heard and determined by the High Court shall be filed at the Legal Registry of the Supreme Court at the Supreme Court Building. These include:

(2) All applications subsequent to the filing of the originating summons in any mental capacity proceedings in the High Court shall be made by way of summons.

(3) An affidavit stating clearly the grounds for the application shall be filed together with the summons.

(4) Where permission is not required to make the application, the affidavit should state the applicant’s belief that he or she falls within the categories of persons listed within section 38(1) of the MCA and Order 99, Rule 2(3) of the Rules of Court.

(5) Where permission is required to make the application, that prayer may be included in the main application itself. There is no requirement for a separate application for permission. The grounds upon which the applicant is relying to obtain such permission must be stated clearly in the supporting affidavit. The Court will decide whether to grant such permission based on the grounds stated in the affidavit.

(6) Relevant documents, such as copies of birth certificates, marriage certificates, the lasting powers of attorney, or of the court orders appointing deputies, must be exhibited to support the averments in the affidavit. Originals of the exhibits must be made available for inspection by the Court during the hearing, if required.

(7) Where an order is sought relating to the property and affairs of a person under section 20 of the MCA, the affidavit should set out the necessary supporting facts. In particular, in an application to sell the residential property of the person lacking capacity, the supporting affidavit should elaborate on why it is just or for the benefit of that person that a sale of the property is ordered, and where that person will be residing if the property were sold.

(8) The affidavit must include any other material information and supporting documents, such as the consents of all relevant family members and a property valuation report.

149. Doctor’s affidavit exhibiting medical report

Affidavit by doctor required

(1) Under Order 40A, Rule 3 of the Rules of Court, expert evidence “is to be given in a written report signed by the expert and exhibited in an affidavit sworn to or affirmed by him testifying that the report exhibited is his and that he accepts full responsibility for the report”. Where a medical report is relied on for the purposes of an application under the MCA, the doctor who prepared the medical report should affirm or swear to an affidavit and exhibit his or her medical report.

(2) In addition, the doctor should indicate in the affidavit that he or she is aware that his or her report is being adduced for the purpose of the application under the MCA, for example, obtaining a declaration that the person concerned lacks capacity in relation to matters specified in the application.

The medical report

(3) In order to assist the Court, the medical report should:

150. Notification

(1) The definition of “P” in Order 99, Rule 1 of the Rules of Court shall be applicable in these Practice Directions. “P” means a person who lacks or, so far as consistent with the context, is alleged to lack capacity (within the meaning of the MCA) and to whom any proceedings under the MCA relate.

(2) Under Order 99, Rule 6 of the Rules of Court, P shall be notified of certain matters by:-

(3) Where P is to be notified that an application has been filed, the person effecting notification must explain to P:-

(4) Where P is to be notified that an application has been withdrawn, the person effecting notification must explain to P:-

(5) Where P is to be notified that a notice of appeal has been filed, the person effecting notification must explain to P:-

(6) Where P is to be notified that a notice of appeal has been withdrawn, the person effecting notification must explain to P:-

(7) Where P is to be notified that an order which affects P has been made by the Court, the person effecting notification must explain to P the effect of the order.

(8) In all cases of notification, the person effecting notification must provide P with the information required under Order 99, Rule 6 of the Rules of Court and this Part of these Practice Directions in a way that is appropriate to P’s circumstances (for example, using simple language, visual aids or any other appropriate means).

(9) The person effecting notification must also inform P that he may seek legal advice and assistance in relation to any matter of which he is notified.

(10) The certificate of notification filed under Order 99, Rule 6(5) of the Rules of Court shall be in Form 26 of Appendix A of these Practice Directions.

Dispensing with notification

(11) Under the MCA, notification of P shall be the norm rather than the exception. However, in certain appropriate circumstances, the person required to notify P may apply to Court for an order to dispense with the requirement to notify P. Such an application would be appropriate where, for example, P is in a permanent vegetative state or a minimally conscious state, or where notification is likely to cause significant and disproportionate distress to P. The reasons for seeking dispensation of notification shall be stated in the supporting affidavit of the plaintiff or applicant.

(12) The Court may, on its own motion, dispense with the notification of P.

151. Application subsequent to the appointment of deputy

(1) An application to vary an order made in mental capacity proceedings shall be made by way of summons supported by affidavit and served on every party who had initially been served with the originating summons as well as on the Public Guardian, within 2 working days after the date on which the application is filed.

(2)If an application under sub-paragraph (1) is filed more than 6 months from the date of the order, the application must be served personally on every defendant. If such an application is filed 6 months or less from the date of the order, the service on every party to the proceedings may be by way of ordinary service.

152. Where P ceases to lack capacity or dies

(1) Where P ceases to lack capacity or dies, the following steps in sub-paragraphs (2) to (7) may, where relevant, need to be taken to finalise the court’s involvement in P’s affairs.

Application to end proceedings

(2) Where P ceases to lack capacity in relation to the matter or matters to which the proceedings relate, an application may be made by any of the following people to the Court to end the proceedings and discharge any orders made in respect of that person:

(3) The application should be supported by evidence that P no longer lacks capacity to make decisions in relation to the matter or matters to which the proceedings relate.

Applications where proceedings have concluded

(4) Where P ceases to lack capacity after proceedings have concluded, an application may be made to the Court to discharge any orders made (including an order appointing a deputy or an order in relation to security).

(5) The affidavit filed in support should exhibit the orders sought to be discharged and contain evidence that P no longer lacks capacity to make decisions in relation to the matter or matters to which the proceedings relate.

Procedure to be followed when P dies

(6) An application for final directions (including discharging an order appointing a deputy or discharging the security) may be made following P’s death. The application should be supported by an affidavit exhibiting a copy of P’s death certificate.

Discharge of security

(7) The Public Guardian may require a deputy to submit a final report upon P ceasing to lack capacity or P’s death. If security has been ordered by the Court, the Court must be satisfied that the Public Guardian either does not require a final report or is satisfied with the final report provided by the deputy before the said security can be discharged.