The Court of Protection is a specialist court which makes decisions on financial or welfare matters for people who lack mental capacity.
The Court of Protection can make decisions about someone’s capacity to make decisions for themselves, including capacity to litigate, i.e. to instruct his or her own legal team and participate in legal proceedings.
So what happens when a person’s capacity to litigate in the Court of Protection is disputed? In this article we analyse a recent case that explores this matter and reveal the judge’s decision.
It should be remembered that under the Mental Capacity Act 2005, the legislation under which the Court of Protection operates, a person must be assumed to have capacity unless it’s established that he or she lacks capacity.
To have capacity to litigate a person must be able to understand, retain and weigh information relevant to the litigation, and be able to communicate any decision they make as a result.
If a person doesn’t have capacity to conduct litigation in the Court of Protection, the court will invite the official solicitor to act on their behalf. When acting on a person’s behalf, the official solicitor will take into account their wishes and feelings on the issue at hand, however they must act in their objective best interests and they can legally make decisions which may even be directly against their wishes.
In January 2024, the Court of Protection was faced with an unusual start to a hearing when two separate legal teams turned up to represent a person, known as Mrs P.
Mrs P was the subject of proceedings brought by the local authority on the basis that she didn’t have capacity to establish whether there had been coercive control over her by her daughter and two other family members. The local authority also wanted the Lasting Powers of Attorney, held by the daughter, to be suspended and all contact between Mrs P and the accused family members to be supervised whilst the issue of coercive control was being determined.
So far as Mrs P was concerned, she believed she had capacity to conduct the proceedings. She instructed a solicitor and a barrister at court to represent her. However at an earlier hearing, before a different judge, it had been decided that there was reason to believe that Mrs P lacked the capacity to litigate. Therefore, a representative of the official solicitor also attended to act on Mrs P’s behalf and the judge had to decide who was able to represent Mrs P.
The context of these proceedings is that Mrs P, who was diagnosed with Alzheimer’s in 2021, refuted the allegations against her daughter. Mrs P said that she wished to remain in contact with her daughter, and for her daughter to continue to be her attorney. If the court accepted that Mrs P had capacity to litigate, this is the position that she would instruct her legal team to advance on her behalf.
On the other hand, if Mrs P was found to not have capacity to litigate, then the official solicitor would act on Mrs P’s behalf and must adopt whatever position is objectively in Mrs P’s best interests. Therefore if the court were to find that Mrs P was being coercively controlled by her daughter, then the position which the official solicitor would put forward would likely be very different and contrary to Mrs P’s expressed wishes.
The judge therefore ordered that before any other issues could be heard in respect of the allegations against Mrs P’s family members, Mrs P’s capacity must be decided at a capacity hearing. Although Mrs P had undertaken four previous capacity assessments, none of these assessments related specifically to litigation capacity. As there was reason to believe Mrs P lacked capacity to litigate, the judge decided that her representation for the capacity hearing should be via the official solicitor.
The key issue for the judge to determine at the subsequent hearing, which took place in June 2024, was whether Mrs P’s capacity to litigate should be decided in isolation, or whether it should be decided alongside the other capacity issues, such as Mrs P’s capacity to decide who she has contact with, or to appoint an attorney.
The official solicitor, who represented Mrs P at the hearing, argued that litigation capacity should be decided first so that if Mrs P was found to have capacity, she could instruct her own legal team to resolve the other capacity issues.
However the local authority argued that it’s rare for someone to have capacity to litigate and then not have capacity in respect of the other issues, and that the capacity issues were all interlinked, so Mrs P’s capacity should be looked at in the context of the proceedings as a whole. For example, they said that although Mrs P didn’t accept that the allegations against her daughter were true, if the allegations were found to be ‘fact’ by the court, then this would be ‘relevant information’ that Mrs P would need to be able to understand, retain and weigh up in order to make decisions about contact with her daughter, her appointment as attorney, and the litigation in general.
Ultimately, the judge decided that all aspects of capacity in question, including litigation capacity, should be determined together at the same hearing. That hearing had not taken place as at the date of writing this article.
This case highlights the difficulties the Court of Protection can face when arguments regarding capacity to litigate arise. It’s rarely a straightforward decision, even with the benefit of expert evidence.
The facts and context of each case will be highly relevant. So far in this case there have been three hearings at which Mrs P’s capacity to litigate has been considered. The court recognises that it’s not a decision it can take lightly, as whether or not Mrs P has capacity is likely to have a profound effect on her relationship with her daughter.
However, even if Mrs P is found to have capacity to litigate, the Court of Protection may still choose to intervene and put safeguarding measures in place, such as supervised contact between Mrs P and her family members. This is because the Court of Protection is an office of the High Court, which has an inherent jurisdiction to protect adults at risk, whether or not they lack capacity.
If you have any concerns or queries regarding mental capacity issues, whether relating to capacity to litigate or in any other respect, please contact our court of protection team.
