Working with Parents Who Lack Capacity in Care Proceedings
Practitioners occasionally represent clients who lack the capacity to conduct legal proceedings on their own. This situation presents considerable challenges in establishing and maintaining an effective solicitor-client relationship, as these clients are highly vulnerable and require a thoughtful, patient, and caring approach.
The Role of the Litigation Friend and the Official Solicitor
When a parent is assessed as lacking capacity and there is no one available or willing to serve as a litigation next friend, the Official Solicitor should be contacted to seek her consent to act. The Office of the Official Solicitor and Public Trustee maintains a helpful website, which includes Standard Instructions for solicitors instructed by the Official Solicitor. These instructions clarify the respective roles and expectations of the Official Solicitor. Importantly, a Litigation Friend for Civil Litigation referral form must be completed before requesting that the Official Solicitor agree to act as litigation friend.
Determining Capacity
If there is concern that a parent involved in proceedings may lack the mental capacity to conduct those proceedings, this issue should be determined as a matter of priority and as early as possible. A parent who lacks capacity is considered a “protected party.” This means they cannot conduct litigation either as a litigant in person or through a solicitor; instead, a litigation friend must be appointed to act on their behalf.
A protected party is defined as “a party, or an intended party, who lacks capacity [within the meaning of the Mental Capacity Act 2005] to conduct proceedings.” The applicable test is found in Sections 2 and 3 of the Mental Capacity Act 2005, and these sections must be read alongside the overarching principles in Section 1(2), (3), and (4) of the Act.
Understanding Lack of Capacity
For the purposes of the Act, a person is considered to lack capacity in relation to a matter if, at the material time, they are unable to make a decision for themselves due to an impairment of or disturbance in the functioning of their mind or brain. The impairment or disturbance may be permanent or temporary. Lack of capacity cannot be established merely by reference to a person’s age, appearance, or a condition or aspect of behaviour that may lead to unjustified assumptions.
In any proceedings, the question of whether a person lacks capacity must be decided on the balance of probabilities.
Criteria for Inability to Make Decisions
Section 2 of the Act states that a person is unable to make a decision for themselves if they cannot:
• Understand the information relevant to the decision;
• Retain that information;
• Use or weigh that information as part of the process of making the decision; or
• Communicate their decision (whether by talking, sign language, or any other means).
A person is not considered able to understand relevant information if they cannot understand an explanation of it in a manner appropriate to their circumstances, such as using simple language, visual aids, or other means. The ability to retain information for only a short time does not prevent a person from being considered able to make the decision. Relevant information also includes the reasonably foreseeable consequences of making a particular decision or failing to do so.
Presumption of Capacity
The starting point in every case is the statutory principle (Section 1(2) MCA 2005) that a person must be assumed to have capacity unless it is established otherwise. It follows that a person must be presumed to have the capacity to conduct proceedings in which they are involved. Declaring that a party lacks capacity has significant legal consequences and must be based on sound legal grounds and proper evidence. Such a finding should only be made with great care, as it deprives a person of the right to bring or respond to litigation without the intervention of a litigation friend. The right to litigate is a basic right protected by English law and safeguarded by the European Convention on Human Rights; it should only be restricted in limited circumstances.
Assessment and Evidence
If the court has the benefit of an expert assessment on capacity, the situation may be clear. However, if a parent declines professional assessment, it is for the court to determine the issue based on the best evidence available. It is highly unusual for the court to make a finding on capacity without any medical or psychological evidence. While the court may have some evidence, it may not be recent. The court will generally seek more current information, considering this both proportionate and necessary, as an opinion regarding capacity in one set of proceedings does not determine the issue in another. Lack of capacity should not be assumed.
In reviewing the evidence, the court must first identify an impairment or disturbance of the mind or brain (“the diagnostic test”) and then determine whether, because of this impairment or disturbance, the protected party cannot make the decisions necessary to conduct proceedings (“the functionality test”).
The court will also consider whether the parent has recently engaged with mental health services or receives assistance from adult social services. However, some parents have minimal involvement with such services and may have declined support. The court may invite the GP or other relevant professionals or agencies to assist in determining litigation capacity.
If no expert report can be obtained and the individual refuses or does not attend a medical or psychological examination, the court must consider what other evidence is available to help make its finding and should give appropriate directions.
Participation Directions
If the parent in question chooses to be directly involved in the proceedings, participation directions should be considered. These allow for adjustments throughout the proceedings to facilitate the parent’s involvement.
Stella Young
Trinity Chambers
