Member Article

The Court of Appeal has considered the question of whether it is fair and appropriate for a Court of Protection Judge to visit the person who lacks mental capacity and about whom the Judge is being asked to make a best interest decision.

Mr Justice Mostyn, sitting in the Family Court, has recently provided further guidance about determining whether a party to litigation has mental capacity to litigate. The consequences of litigating if you lack capacity, or of litigating against a person who lacks capacity, are that the proceedings and any settlements negotiated are likely to be void if the person lacking capacity does not have the benefit of assistance from a ‘litigation friend’, who is someone with full capacity that is able to make decisions for them.

Section 2 of the Mental Capacity Act 2005 provides that 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 goes on to set out that for the purposes of section 2, a person is ‘unable to make a decision for himself’ if he is unable:

1. to understand the information relevant to the decision, and/or
2. to retain that information, and/or
3. to use or weigh that information as part of the process of making the decision, and/or
4. to communicate his decision (whether by talking, using sign language or any other means).

In relation to any form of litigation that capacity test applies to the litigation as a whole, so it is not possible to have capacity for some decisions in the litigation but not others.

In the recent case of Richardson-Ruhan v Ruhan & Ors [2021] 18-19 January 2021, Mr Justice Mostyn heard evidence from a capacity assessor whose opinion was that the wife in this family case would have capacity to make the relevant decisions if, and only if, she had the benefit of legal advice and representation. If she did not have legal advice then he did not think that she would be capable of navigating the legal complexities involved.

The Judge’s view was that “the capacity to conduct proceedings cannot depend on whether the party receives no legal advice, or good legal advice or bad legal advice. If the party would be capable of making the necessary decisions with the benefit of advice then she has capacity whether or not she actually has the benefit of that advice.”

In other words, if a party to litigation is able to seek legal advice and will only have full capacity to conduct the litigation if that advice is received, it is reasonable to make the determination of capacity on the basis that the legal advice and representation will actually be obtained.

The Court of Protection team at Shoosmiths acts for clients who lack the mental capacity to manage their own property and financial affairs. This involves assessing and reviewing capacity for a range of decisions on a regular basis, and we are experts in advising on capacity under the Mantel Health Act 2005. It is always helpful to have clarity from the courts as to how capacity should be assessed, although the biggest question this case raises is what happens with those clients who have borderline capacity but cannot be relied upon to seek and obtain the advice that they require in order to make decisions? Will they be deemed to have capacity now? Currently, lack of engagement with a range of advisory and support services can be used as evidence of lack of capacity.