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The Appeals Process for the Removal of Capacity in Legal Proceedings

Volume 571: debated on Wednesday 27 November 2013

The Petition of Sarah Matthews, a mother living in England,

Declares that the Petitioner’s barrister, Francesca Wiley, of 1 Garden Court Chambers without having met or being formally appointed by the Petitioner and merely on reading documents created by London Borough of Sutton applied to the court to have her mental capacity to instruct a solicitor removed because the barrister believed she was subject to querulous paranoia. Additionally her solicitors Russell & Co informed her prior to her meeting her barrister that they had jointly decided that she did not have capacity. Furthermore the solicitors refused to be instructed at this point.

The Petitioner then contacted the Honourable Member for Birmingham, Yardley who put her in touch with Sam Smith, who is a McKenzie Friend specialising in capacity issues. Sam Smith assisted her in successfully retaining her capacity to instruct a solicitor. This, however, involved paying an experts fee of £1,650 for a full assessment, followed by a further £1,500 for the expert to attend court and provide the written report. The court ordered that the Petitioner should pay the cost of this experts report if legal aid refused to pay it, which legal aid duly refused to do.

The Petitioner recognises that there is no legal support for those people who wish to argue against a removal of capacity and believes that there is a conflict of interest when legal advisors can apply to remove the capacity of their own client whilst retaining the matter when a litigation friend is appointed.

The Petitioner believes that it is difficult for someone to believe the inequality of arms when a litigant’s own legal advisors start acting against a litigant until they have experienced this.

Furthermore the Petitioner is being refused access to her files by the London Borough of Sutton. Records appear to have been altered with the intention of preventing disclosure under s77 of the Freedom of Information Act and without these she is unable to correct inaccurate information held.

The Petitioner therefore requests that the House of Commons Justice Committee investigates the procedures that are used to remove capacity in the English and Welsh courts and calls for the provision of independent legal assistance for those people who wish to resist the removal of their capacity.

And the Petitioners remain, etc.—[Presented by John Hemming.]