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Volume 573: debated on Monday 13 January 2014


Monday 13 January 2014



The Appeals Process for the Removal of Capacity in Legal Proceedings

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 the 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 hon. 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 advisers 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 advisers 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, Official Report, 27 November 2013; Vol. 571, c. 5P.]


Observations from the Secretary of State for Justice:

An individual’s capacity to litigate is assessed under the principles of the Mental Capacity Act 2005. In particular, that Act states a presumption that a person must be assumed to have capacity unless it is established that he lacks it. The philosophy of the Act is to maximise the scope for people to make their own decisions and for an individual to be treated as unable to do so only if all practicable steps for assisting him or her to make the decision have been exhausted. The courts had already adopted the presumption that all adults are competent to manage their property and affairs, and accordingly that it is for the person alleging incapacity to displace that presumption and to prove incapacity, not for an adult to prove his own capacity (the leading case prior to the 2005 Act being Masterman Lister v. Brutton [2002] EWHC 417).

The assessment of litigation capacity is a matter for the court to decide in the individual case—it is categorically not a decision for other parties nor for the affected party’s lawyers. Given the presumption of capacity, the courts must consider the matter with great care, and in particular must do so on the basis of evidence, including medical evidence. The affected party must be notified of any proposal to question their capacity, and is entitled to present (or instruct lawyers to present) their case on the point to the court, calling such evidence (including medical evidence) as is appropriate. They are of course also entitled to challenge the evidence presented against their position in the usual way, and a decision by the court that they lack capacity would be capable of appeal, where appropriate, on the usual principles and procedure. As with any other issue in proceedings, the affected party can simply concede that he or she lacks capacity, but that would be a decision only the affected party is entitled to make.

Litigation capacity is a fundamental concern and the courts have been very clear as to the importance they place on the right of an individual to conduct litigation in their own right. In particular, capacity is considered in an “issue specific” way, so that it is accepted that a person may not have capacity to conduct one kind of litigation, but this does not prevent them being found to have capacity regarding the conduct of another sort of case subsequently—the issue will be looked at in the context of the specific case.

Where a party lacks capacity, this has very important consequences requiring not only the appointment of a litigation friend for the protection of their own interests, but to protect other parties too. First, if a party does in fact lack capacity, it is important that they are able to continue asserting their rights through the courts (or indeed defending their position) and do not lose that opportunity through the lack of capacity. Therefore, the appointment of a litigation friend, as a consequence of a finding by the court of a lack of capacity ensures that the affected party’s case can be properly litigated despite the lack of capacity. It should be noted that a person may not be appointed as a litigation friend by court order unless they satisfy the court that (a) they can fairly and properly conduct the proceedings on the part of the affected party, and (b) they have no adverse interest to the affected party.

Secondly, if it subsequently transpires that one of the parties to litigation did not have capacity to conduct it, that party will not be bound by the outcome. That would be highly prejudicial to other parties, who will have gone to the expense and trouble of the litigation only to find that the result was not binding (whether the case settled or had to be determined by a court). For this reason it is important for the proper administration of justice that issues of capacity can be raised before the court and determined at the earliest possible stage.

For these reasons, it is perfectly proper for the affected party’s own legal team to raise any concerns they have as to that party’s capacity with the court (and indeed, having the most knowledge of that party they are likely to be best placed to do so). Other parties may also raise the issue, or the court may deal with it on its own initiative. Raising the issue is of course a very different matter from having any power to determine it, this being for the court alone.

The Government cannot of course comment on the individual circumstances of the Petitioner’s case and the questions raised about the conduct of her legal team. However, the conduct of lawyers is regulated by their respective professional regulatory bodies. Their rules of professional conduct strictly regulate the duties lawyers have to their clients, and when they are property allowed to decline instructions, or must consider themselves to have a conflict of interest such as to be unable to property represent the client. A failure to abide by professional rules in these matters renders the lawyer liable to disciplinary action by the relevant regulatory body, which can have very serious consequences for the lawyers concerned.

In the light of the existing safeguards as described above and including the professional duties and discipline to which lawyers are subject, the Government are of the view that there is sufficient legal assistance in these cases, but will keep the position under review.