Concerns about a client's capacity to conduct proceedings
Insight

A client may lack capacity as a result of illness at any stage of life, or the issue may arise as a result of a client's alcoholism or drug addiction. It is important for practitioners to take swift and early action if they have concerns about their client's capacity. An individual who lacks capacity to litigate is a protected party pursuant to the Family Procedure Rules 2010 and must have a litigation friend to conduct proceedings on their behalf.
This column considers the test for capacity, and the steps that should be taken where there are concerns about a client's capacity.
The test for capacity
The test for capacity is set out in s 2 of the Mental Capacity 2005 ('MCA 2005'). A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary.
It is therefore a two-part test:
- Is there an impairment of or disturbance in the functioning of the person's mind or brain? If so,
- Is the impairment or disturbance sufficient to render the person incapable of making that particular decision?
Unable to make a decision
MCA 2005, s 3(1) provides that a person is unable to make a decision for himself if one of the following applies:
a) The person in question is unable to understand the information relevant to the decision.
A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision. The quality of the decision is irrelevant as long as the person understands what he is deciding.
b) The person in question is unable to retain the information relevant to the decision.
The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
c) The person in question is unable to use or weigh the relevant information as part of the process of making the decision.
d) The person in question is unable to communicate his decision (whether by talking, using sign language or any other means).
Assessing capacity
There is a presumption that a person has capacity to litigate (MCA 2005, s 1(2)) and therefore the burden of proof is on the party seeking to establish that a person lacks capacity. The standard of proof is the balance of probabilities (MCA 2005, s 2(4)). In each case the test as set out above must be applied, and the decision as to whether a person lacks capacity should not be made simply because of their age, appearance, condition or behaviour (MCA 2005, s 2(3)).
Where a party has a solicitor, it is the solicitor who is likely to first identify that the party may lack litigation capacity but doubts about whether a person lacks capacity can be raised by the solicitor for the person in question, the solicitor for another party or by the court. The court is under a duty to investigate the issue whenever there is reason to suspect that a person may lack capacity (Masterman-Lister v Brutton & Co; Masterman-Lister v Jewell [2002] EWCA Civ 1889).
A party's representatives are also under a duty to draw any suspected lack of capacity to the attention of the court and it is their professional duty to have the question resolved as quickly as possible (RP v Nottingham City Council and the Official Solicitor (Mental Capacity of Parent) [2008] EWCA Civ 462, [2008] 2 FLR 1516 para [47]).
Where doubts exist about whether a person lacks capacity, the Code of Practice accompanying the 2005 Act sets out a checklist of questions which should be asked by the solicitor acting for that party (para 4.36) :
- Does the person have all the relevant information they need to make the decision?
- If they are making a decision that involves choosing between alternatives, do they have information on all the different options?
- Would the person have a better understanding if information was explained or presented in another way?
- Are there times of day when the person's understanding is better?
- Are there locations where they may feel more at ease?
- Can the decision be put off until the circumstances are different and the person concerned may be able to make the decision?
- Can anyone else help the person to make choices or express a view (for example, a family member or carer, an advocate or someone to help with communication)
Expert evidence as to whether a party lacks such capacity is likely to be necessary for the court to make a determination relating to the party's capacity to conduct proceedings. However, in many cases the court may consider that evidence from a treating clinician, such as a treating psychiatrist, is sufficient.
An assessor must be able to describe the steps they have taken to assess capacity, have objective reasons and justify their conclusions for deciding the person lacks capacity to make the required decision.
Alcoholism or drug addiction
Paragraph 4.9 of the Code of Practice which accompanies the MCA 2005 states that drunkenness is a category of "condition" which should not be treated as a sign of incapacity. However, para 4.12 of the Code of Practice lists the symptoms of alcohol or drug use in the categories of impairment or disturbance of the mind or brain which are forms of incapacity. Therefore, being under the influence of alcohol would not fall within the definition of incapacity under the MCA 2005, the symptoms of alcohol and drug use do fall within the Act.
Appointment of a litigation friend
People who lack capacity to instruct a solicitor or conduct their own case will need a litigation friend. This person could be a relative or friend, or the Official Solicitor (when no-one else is available). The litigation friend is able to give instructions on behalf of the person who has lost capacity.
Part 14 of the Family Procedure Rules 2010 sets out the procedure that must be followed. An application for a court order appointing a litigation friend should be made in accordance with Part 18 and must be supported by evidence.
The evidence must satisfy the court that the proposed litigation friend:
(a) consents to act;
(b) can fairly and competently conduct proceedings on behalf of the protected party;
(c) has no interest adverse to that of the protected party; and
(d) undertakes to pay any costs which the protected party may be ordered to pay in relation to the proceedings, subject to any right the litigation friend may have to be repaid from the assets of the protected party.
The role of litigation friend is a significant undertaking, and perhaps the most difficult for a family member or friend to undertake – particularly bearing in mind they are stepping into the shoes of and making decisions for a loved one who may regain capacity in future.
Where there is no one available to act as a litigation friend, the Official Solicitor may be appointed to act.
In practical terms, practitioners and parties in cases where capacity issues arise need to carefully consider the best approach for them, including whether in practice there is any possibility of the protected party spouse regaining capacity in future. Would it be best to delay proceedings to allow them time to recover if that were to be feasible within an appropriate timeframe? Or is it best for that particular family for proceedings to advance in circumstances where one party is unable to participate in their own right? These decisions are of the utmost difficulty, meaning advice should be sought from experienced specialists.
Please note this content was originally published in the Family Law Journal. September 2024 edition, best practice section.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2024