Liberty is a fundamental human right. As a concept, it includes free will; the ability to think for oneself and make decisions accordingly – and to act upon them within the limits of the law.

Unsurprisingly, we presume that any person over the age of 18 is able to make his or her own decision on any issue. We are cautious not to override the autonomy of the individual, save in exceptional circumstances.

As family lawyers, we are used to our clients’ emotions getting in the way of a rational decision making process. Some cases are run to trial for that reason alone. We may often question the wisdom of decisions, but it is very rare for us to question the capacity of our clients to make them, or to conduct the case itself, particularly in financial remedy proceedings. Questioning the capacity of a client is no easy thing. It could even destroy the solicitor client relationship, where either medical evidence is not supportive of the lawyer’s position, or where the court is not convinced. Proceeding to have a client classed as a protected person, without his or her support, would be rare indeed.

That said, there will be occasions where the duty to act in the client’s best interests leaves no other option. There is also a duty to inform the court in FPR PD15B.

What then is the process to follow where there is doubt about the ability of a client to make a decision – and specifically of conducting litigation? This is no easy test to apply.

The age old common law concept of capacity was expanded upon and enshrined in statute by the Mental Capacity Act 2005 (MCA 2005), which exists in addition to and not as a replacement of the various common law tests. At its simplest, capacity is the ability to make a decision, but this means any decision on any issue, in every walk of life. For a bank, capacity might be important to ensure a person is able to enter into a loan agreement. For a doctor, valid consent must be given for medical treatment. For a lawyer it could be that capacity is relevant to the making of a will or the ability to conduct litigation. Capacity is both specific to every particular issue and every instant in time. It can even be person specific, so that what seems a simple concept quickly develops into something else entirely.
MCA 2005 sets out 5 principles, being:

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 to do so have been taken without success;
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests; and
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

On top of those principles is the test itself. Section 2 (1) MCA 2005 provides:

“For the purposes of this Act, 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.”

Section 3 (1) provides:

“For the purposes of section 2, 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
(d) to communicate his decision (whether by talking, using sign language or any other means).

How does all this fit in with deciding whether a client can conduct litigation?

The starting point has to be awareness of the potential issue. Any pre-existing condition is likely to have been made known at the outset of a case, or knowledge may occur during the case itself. If possible, investigations should be made at an early stage through family members or close friends. You may even have been consulted by a potential litigation friend at the outset of the case.

You will need to be satisfied that you have done your best to obtain all relevant information and can then take a personal view as to whether a client can understand relevant information, retain it and use it in making decisions relevant to the case. These three things go together. Failure on any one point means that the client cannot make a decision. If the client passes on all three, he or she then needs to be able to communicate that decision in some way.

The information relevant to the decision should be explained to the client, including the nature of the decision, why the decision is needed and the likely consequences of the decision – or of failing to make the decision. You have to do your best to try to ensure understanding of the decision to be made, for example, by presenting the information in different ways or through another party, in a different location or even at a different time. The requirement for retention means that you would need to check your client’s knowledge of the information a short time after the initial explanation. Can your client explain his or her reasons for the decision?

In the case of real doubt, the next step should be to take appropriate medical advice. Usually this would be from the medical professional already involved in providing treatment, or if none, then firstly from the client’s GP, then if appropriate a suitable specialist. Pro forma letters of enquiry are readily available from a number of sources. If the medical opinion is that the client has capacity to litigate, then the choice is to struggle on, or look for a second opinion, as the ultimate responsibility rests with you as the lawyer with conduct of the case. If the medical advice is that the client lacks capacity, and you agree, then the next step is to appoint a litigation friend, preferably with the consent of the client. The court will also have a duty to investigate capacity and will make appropriate orders in the event of dispute. If a litigation friend is appointed, the client becomes a “protected party”.

The common law test in relation to capacity to conduct litigation is essentially the same as that in MCA 2005, but in each case the barrier to appointing a litigation friend is high. It is even possible (although rarely) for a client to have capacity to conduct the case whilst still lacking the capacity to make the decisions which are the subject matter of the case itself! (as actually occurred in the matter below).

This issue of litigation capacity was addressed recently in detail by District Judge Batten in London Borough of Islington v QR (2014) EWCOP 26, in which the judge confirmed the test for litigation capacity in Masterman Lister v Brutton [2002] EWCA Civ 1889 remains relevant to assessment of litigation capacity under the Mental Capacity Act 2005 i.e:

“the test to be applied… is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a (litigation friend)”.

District Judge Batter also referred to the case of Baker Tilly v Makar [2013] EWHC 759 (QB) in which Sir Raymond Jack said:

“The court should be most cautious before concluding that the probability is that there is a disturbance of the mind. Such a finding (of lack of litigation capacity) is a serious step for both parties. It takes away the protected party’s right to conduct their litigation. It may constitute… a serious disadvantage to the other party.”

The actual procedure for appointment is contained, in the case of family proceedings, in FPR Part 15 and Practice Directions 15A and 15B. There are two routes, depending on whether or not there is a court order.

Assuming the court has not previously appointed a deputy under s 16 (2) (b) of MCA 2005, you first have to find a person who:

1. Can fairly and competently conduct proceedings on behalf of the protected party;
2. Has no adverse interest to the protected party; and
3. Will give certain undertakings as to costs.

A certificate of suitability is then filed when the first step in the proceedings is taken on behalf of the protected party and this is served on all other parties. This certificate will contain confirmation as to the lack of capacity, the grounds for that belief and whether it is based on medical opinion. The court may require a directions hearing to consider the position further, before allowing the application to progress.

Alternatively the appointment may be made by court order, upon a part 18 FPR application being made by the person wishing to be a litigation friend, supported by appropriate evidence. Naturally the procedure allows for the appointment to be brought to an end in the event that the client recovers capacity. The court may also decline to make the appointment in the first place.

The Official Solicitor’s March 2013 Practice Note makes very clear that the client has a right to challenge the appointment of a litigation friend – and that a court order will be required wherever there is such a dispute, or where two or more experts are in disagreement.

If no suitable and willing person can be found, the Official Solicitor is the last resort, as is made clear in the March 2013 Practice Note. A checklist for appointment of the Official Solicitor can be found on the Justice website, which contains a useful list of all required steps prior to the appointment, a summary of which is:

1. Reasons for the belief;
2. Whether any court order has been made regarding capacity;
3. Any assessment of capacity and details of professional (s);
4. Whether protected party has been informed of the assessment and whether it has been accepted;
5. Whether the protected party has been informed of the effect of appointing a litigation friend;
6. Whether a search has been made for alternatives to the Official Solicitor; and
7. Funding issues – who will pay?

Inevitably the involvement of a litigation friend will add complexity and delay, especially if the role is fulfilled by the Official Solicitor. This is one natural consequence of having to seek instructions from a third party, who must also be satisfied that he or she is acting in the best interest of the protected person. Repeated adjournments of hearings to allow for extra time are not uncommon.

Where a family member, perhaps a father, fulfils the role, the nature of the relationship between him and the other party may also cause complications – and a challenge to suitability under FPR Part 15.

There may also be problems in gathering and giving evidence. Under FPR PD15B the court will have to consider whether the protected party is capable of giving evidence – and may require expert evidence to determine that issue. It is possible that the court will decide, if satisfied that the protected party would suffer harm, that no evidence should be given. The court will then have to rely on another person’s assessment of what would be best for the protected person.

Ultimately, the duty to do what is right for the client must win out over all the potential difficulties. In cases where the client and medical professionals agree, it is also the only safe and appropriate way of proceeding. In other cases, which do not result in protected party status, at the very least your file will show that you have considered all the issues – and that you took those steps for good reasons.

Remember all these considerations apply regardless of whether proceedings have been issued. If your client compromises a case by way of a consent order, the guidance in the case of MAP v RAP (2013) EWHC 4784 (Fam) should be followed. In this case the a District Judge had approved a consent order, having not been provided with a letter sent by the wife to the court some days earlier, in which she had warned of her psychiatric problems. Mostyn J revoked the order under FPR Rule 4.1(6) and stated that, to his knowledge, this was the first reported case of its kind. He highlighted that the FPR do not contain similar provisions to CPR Rule 21, which provides that a compromise is only valid where a protected party has a litigation friend and where the court gives approval, although he also noted that in financial remedy proceedings the court must give approval in any event. Should the order be invalid on the basis that one party lacked capacity, even though the other party and the court did now know when the order was made? Mostyn J referred to the civil case of Dunhill v Burgin (2013) 1 All ER 482 in which Mr Justice Bean decided, as a preliminary issue, that the law must be so (and the Supreme Court later agreed with that reasoning). The moral therefore is to look to the capacity of both spouses, not your client alone.

This article appears in the February 2015 edition of the Family Law Journal and you can download a copy here