MCA 23 Blog: where a party other than P lacks capacity
On 12 October 2023, we hosted the annual Mental Capacity Act Conference. This year’s conference audience were delighted with the talented Ms Hannah Bakshani, a Barrister from St John’s Buildings Chambers specialising in Court of Protection taking the stage.
Ms Bakshani gave an informative presentation about the practicalities in dealing with a case where P isn’t the only person involved in the proceedings that lacks capacity. The issue covered is one which comes about somewhat regularly and one which can cause anxiety when it does.
Does the issue arise?
At the outset Ms Bakshani highlighted that these cases will be fact specific, and the guidance will have to be applied to the individual facts of a case.
In cases like these it must be assumed that a person has decision making capacity unless it can be evidenced that they lack it. Importantly, it must be remembered that the existence of a diagnosis does not mean that a person lacks capacity, and that assuming they don’t have capacity would be discrimination.
Ms Bakshani continued by reminding the audience that where the party in question is a family member of P, it is very likely the proceedings cause an incredible stress for them. This may impact their capacity and the Mental Capacity Act 2005 allows incapacity to arise from a temporary impairment.
However, the Mental Capacity Act 2005 also provides that someone should not be considered unable to understand information relevant to a decision if they can understand an explanation given in a way that’s appropriate to their needs (for example using simple language, visual aids, or any other means).
Ms Bakshani recommended keeping a record of any such measures attempted or used on the client file.
The relevant information can be summarised as such:
· The issues where P would be required to make a decision in these proceedings
· The ability to give proper instructions, including to compromise
· How the proceedings are funded
· An understanding of when to seek advice and how to weigh it
She also referenced guidance, which makes clear that bizarre behaviour or illegible documentation is not sufficient to find a lack of capacity.
Where professionals have suspicion of a lack of capacity, it’s recommended they write down the reasons underpinning this and retain them on the client file.
What should you do if you believe that this issue has arisen?
Speak to the team
Firstly, the concerns should be discussed with the rest of the legal team to see whether everyone agrees. This also allows for discussion of how the client could be supported to give capacitous instructions.
There are a number of quite serious consequences should the team fail to consider how to best support a vulnerable person. This includes consequences if a clients legal team acted on instructions where the client lacks capacity – this issue cannot be ignored!
So, if despite all of this the client is still thought to lack capacity, what next? The client still needs to be represented by their legal team. We are not the arbiter of whether our client lacks capacity, that is the role of the court.
Talk with the client
It is key to communicate with the client regarding the issue, giving them the reasons it is suspected they may lack capacity, and keep a clear note of this conversation on their file . This conversation must take place as soon as possible, whilst also being mindful that it is a very sensitive matter to discuss. The client needs to be informed that:
· The court will need to be made aware
· Other parties will be made aware by extension
· There is a need to ask the court to order an assessment of capacity and that this may involve a test of their function of psychiatric assessment
Below are some of Ms Bakshani’s tips for how to approach the client in this conversation:
· Reinforce that it is not a criticism of the client, and that this is to support their engagement in proceedings
· Reassure them that their affairs are still confidential
· Discuss the role of a litigation friend, be it the Official Solicitor or even a family member
Should the court be informed?
The case law and the Civil Procedure Rules should be referred to. In summary, the issue of capacity is one which should be urgently determined so a litigation friend, when necessary, can be appointed. The consequence of not doing so is the risk that actions taken in proceedings will not be effective.
As the role of determining capacity belongs to the court, it clearly must be made aware of the issue to enable it to do so.
Ms Bakshani went on to summarise that the matter should be raised with the court for determination as soon as possible.
As an additional note, a consequence of the guidance is that if another party is suspected, including unrepresented parties, to lack capacity, then it must be brought to the attention of the court.
What about the other parties?
It should be noted that it would be difficult to have a situation where the court is aware of this issue, but the other parties involved are unaware. With brief reference to the guidance on closed hearings, which was covered in greater detail by Sam Karim KC’s presentation at the conference, Ms Bakshani concluded that whilst the court does have the power to withhold this information from the other parties, it should only be done so as the exception, not the rule.
Once everyone is informed, the courts needs must be considered. The starting point should be a capacity assessment, and the court should be asked to direct this. There would be no harm in asking for the cost of this to be shared, as it is to the general benefit of the proceedings for all parties to be properly supported.
Ms Bakshani noted the issue of the client not agreeing to the assessment, and they cannot be forced. With reference to Z v Kent County Council  EWFC B65 , Ms Bakshani set out a relevant excerpt: “A parent may decline professional assessment. In those circumstances, it will be for the court to determine the issue on the best evidence it has available.”
In such circumstances, the following are likely useful resources to aid in this determination:
· Medical records
· Local authority records
· Views of others / professionals
Ms Bakshani’s conclusion was that if expert evidence is obtained and the conclusions are agreed, that is likely the end of it. They either have capacity, or they don’t, and a litigation friend is required. However, if the person disputes the conclusion, then it is likely that the court will need to list an urgent hearing to make a determination on the issue.
If it is found that the client does have capacity, it would not be unforeseeable for there to have been a breakdown in the relationship. It would need to be carefully considered whether any application should come off the court record as acting for the client.
Don’t lose sight of the forest
Whilst this issue can easily become the main focus in proceedings, ultimately the court is concerned with P’s best interests and there may be potential for a contested hearing. In such circumstances, there would need to be a determination of the client’s competence to give evidence – which is distinct from litigation capacity. Even where competent, it is recommended that regard is given to special measures for giving evidence, although ultimately whether or how a person lacking capacity gives evidence is a matter for the litigation friend.
Ms Bakshani very helpfully has set out a number of resources which may assist in dealing with this issue.