When is your client a protected person?
Guy Mansfield QC
Legal and Medical, July 2009
When is your client a protected person? What should the lawyers do?
This short article discusses the role of lawyers and medical advisers acting in litigation whose client’s behaviour during the course of the litigation causes concern1. In particular, does he/she now lack the capacity to take the necessary decisions in the litigation itself. A protected party must have a litigation friend to conduct proceedings on his behalf2. A protected party is one who lacks capacity to conduct proceedings3, i.e. at the material time 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 brain4.
(1) A person must be assumed to have capacity unless it is established that he lacks capacity; (2) a person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success; (3) a person must not be treated as unable to make a decision merely because he makes an unwise decision.
The assumption of capacity can only be overridden if the person concerned is assessed as lacking the mental capacity to make a particular decision for himself at the relevant time. S.3 provides6:
(1) … a person is unable to make a decision for
himself if he is unable —
a) to understand the information relevant to the decision,
b) to retain that information,
c) to use or weigh that information as part of the process of making the decision, or
(2) to communicate his decision …
A protected party must have a litigation friend to conduct proceedings on his behalf7. If during proceedings, a party lacks capacity to continue to conduct proceedings, no party may take any further step without the permission of the court until a party has a litigation friend8; any step taken before a protected party has a litigation friend is of no effect unless the court orders otherwise9.
In Saulle v Nouvet10, under the new Part 21, it was held that the court was obliged to adopt the statutory definition of capacity set out in s.2(1) of the 2005 Act. The court had to decide the question of a claimant's capacity with neither the claimant nor the defendant positively asserting that capacity was lacking. It held there was capacity and stressed the importance of the presumption and the words of the test.
In McFaddens v. Platford11, barrister and solicitors in the original litigation had a client whose behaviour raised questions about mental health and fitness to conduct proceedings. Though governed by the old law12 the approach adopted by court is consistent with the new law. The judge started with the presumption that a litigant was capable of managing his own affairs and a test “whether the party to legal proceedings is capable of understanding with the assistance of such proper explanation from legal advisers and experts … , the issues on which his consent or decision is likely to be necessary in the course of those proceedings.” The trial had previously been adjourned on the grounds of depression and C’s inability to face up to instructing his lawyers or undergo cross examination. The judge held that faced with a client who had twice been diagnosed with depression in the last nine months, who now denied he had ever been depressed, and who was refusing to take advice or effectively engage with the litigation, it had been reasonable to ask the court for directions. Because the trial was only three weeks away it was right to apply inter partes because of the interests of the other side if the case was adjourned. Counsel’s advice was not to be faulted.
If a client lacks capacity the lawyers can no longer take effective instructions. They cannot take further steps. Though the court may subsequently ratify earlier steps, this is not to be assumed; costs consequences could be serious. If concerns arise, the lawyers should seek the help of a psychiatrist. Has the client been given information relevant to the decision to be made? Can he/she understand that information and retain it, i.e. use or weigh that information? Is he/she capable of expressing a choice? Are the decisions such as to warrant a psychiatric diagnosis of disturbance or impairment in the functioning of mind or brain? The presumption of capacity is important and the statutory test sets hurdles. But lawyers owe duties to the court. It will require a sensible and careful consideration and if necessary application to court. If there were good grounds for concern, then in overriding the client’s instructions not to co-operate they are likely to be protected from the client’s later complaint by the court.
1 Anyone faced with a problem must read the Act and CPR with care
2 CPR r.21.2(1)
3 CPR r.21.1(2)(d). r. 21.1(2)(c) adopts the meaning of “lacks capacity” contained in s. 2(1).
4 s.2(2); it does not matter that the disturbance is permanent or temporary
5 S.1 – see further provisions in (4) and (5)
6 See s.1 sub-paras (2) – (4) for further important provisions.
7 Anyone faced with a problem must read the Act and CPR with care
8 CPR r.21.2(1)
9 CPR r.21.1(2)(d). r. 21.1(2)(c) adopts the meaning of “lacks capacity” contained in s. 2(1).
10 s.2(2); it does not matter that the disturbance is permanent or temporary
11 S.1 – see further provisions in (4) and (5)
12 See s.1 sub-paras (2) – (4) for further important provisions.
Guy Mansfield QC, 1 Crown Office Row, Temple EC4Y 7HH
The author was counsel for the barrister in the case of McFaddens v Platford