The Mental Capacity Act 2005 (“the Act”) provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. The Act’s starting point is that it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves unless it can be show that they lack capacity to make a decision for themselves at the time the decision needs to be made. The Act also states that people must be given all appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision-making process. Section 1 of the Act sets out the five statutory principles that underpin the legal requirements in the Act. These are:
1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Anyone assessing someone’s capacity to make a decision for themselves should use the two-stage test of capacity:
1. Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.)
2. If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?
Capacity is decision specific, so a client could have capacity to make a simple decision but not a complex one. A client therefore might have capacity to manage their financial affairs from day-to-day but not to be able to litigate proceedings such as financial remedy proceedings.
The level of capacity to litigate is set relatively high. In Re P; An NHS Trust v P (by her litigation friend, the Official Solicitor)  EWCOP 27, Mostyn J noted that ‘Litigation, even so-called simple litigation, is a complex business. For virtually every case the substantive law, to say nothing of the procedural rules, is a daunting challenge, and can be aminefield.’ Masterman-Lister v Brutton & Co  EWCA Civ 1889 Chadwick LJ (at para 75) stated that the test for capacity to conduct litigation is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings.
At para 26, Kennedy LJ stated that litigation capacity required the ability to:
- recognise a problem
- obtain and receive and understand relevant information about it, including advice
- weigh the information (including that derived from advice) in the balance in reaching a decision, and communicate that decision
The capacity test under the MCA 2005 is set out in section 3 and is matter- and fact- specific. To be capable to litigate a person must be able to:
- understand the information relevant to the decision
- retain that information (the time necessary for retention will depend on the matter at hand)
- use that information as part of the process of making a decision
- communicate the decision whether by talking, using sign language or any other means.
If you are in proceedings. it is vital that if you have any concerns about your client’s capacity, you act quickly. Where legal representatives conduct a case on behalf of someone who is later recognised to be a protected person, the absence of a litigation friend invalidates the proceedings and any purported compromise of them (Dunhill v Burgin  EWHC 3163 (QB)). If a party is or becomes mentally incapable before or during the court of proceedings, they must have a litigation friend to conduct or continueany proceedings. Practice Direction 15B makes clear that if there is reason to believe a party may lack capacity to conduct proceedings, the court must be notified and direction sought to ensure that this issue is investigated without delay (paragraph 1.3).
In practice, you might encounter various different circumstances when dealing with a client who lacks capacity. Sometimes the client may already lack capacity when proceedings are issued, and there may be a Deputy already acting for the party, sometimes the client may have appointed an attorney under a Lasting Power of Attorney to deal with property and financial affairs. The situation is more complex where you are concerned that the client may lack capacity, but the client themselves may not have acknowledged this. We have set out a number of Q&As below which we hope help deal with the most common questions and scenarios which may arise; but it is impossible to cover every eventuality and therefore we have provided a list of sources of further information at the end of this article which will also assist.
What is the difference between a Lasting Power of Attorney (LPA) and a Deputyship?
LPAs are created by s.9 of MCA 2005. Section 10 enables an individual who has mental capacity to appoint anyone and as many people as they like as an attorney. LPAs may be appointed to act jointly or severally. There are 2 prescribed forms – one for personal welfare and one for property and affairs. The LPA does not become effective until it is registered. In order for the Public Guardian to register the LPA there must be a certificate of capacity accompanying the application signed by someone who has known the party personally for 2 years or has relevant skills and expertise. An LPA operates as an ordinary power of attorney in relation to property and affairs while the donor maintains capacity, but if they lose capacity the LPA operates as a power to make decisions on behalf of the donor. If a party has lost capacity without appointing an attorney under an LPA, they will no longer be able to do so as capacity is required. Where capacity is lost and it’s necessary for a party’s welfare or property and affairs to be managed by another, an application is made to the Court of Protection to appoint a deputy.
If you have concerns that your client lacks capacity what should you do?
If you haven’t had experience of dealing with capacity issues before, it can be difficult to know how to raise this topic with your client sensitively. One of Stowe’s Associates in the Esher, Guildford and Brighton offices, has considerable experience of working with vulnerable clients. She says that she tries to have a general conversation about a client’s mental health in every initial meeting, just as she would discuss their physical health. For example, she may ask the client whether they have a history of mental health issues, any formal diagnosis, or whether they have ever spent time in hospital in connection with any mental health issues. She advises that you should make it sound generic and explain that it’s something you ask every client, so you can better understand and advise them of any risks of the other side seeking to frustrate or invalidate the proceedings by claiming our client lacks capacity. You might also want to say that it is the firm’s policy or SRA policy that you discuss mental health with every client, and that can be a useful way of helping you maintain rapport with your client, without causing them any offence. Nicola pointed out this won’t be suitable for every client but the more you can discuss at the outset the better, because it doesn’t then come as a shock at an important/urgent stage of matters.
If you have doubts about your client’s capacity, you should obtain a capacity assessment – If you need to obtain a capacity assessment you should explain to your client the concerns you have about their capacity, the purpose of the capacity assessment and any implications if their are found to not have capacity. If possible, you should obtain your client’s written consent or express agreement to obtain the assessment and to instruct the assessor and advise them of any cost.
Mental capacity is a question of fact so any issue of capacity can only be determined by a judge in legal proceedings acting not as a medical expert, but as a lay person
influenced by personal observation and on the basis of evidence and on the balance of probabilities. This can include expert evidence from medical witnesses and evidence from those who know the individual, such as a carer or social worker or family member. The ‘evidence’ can also include the presentation of the individual. In a case of any complexity, medical evidence will almost always be required.
A psychiatrist will often carry out the assessment, however a psychologist may be better qualified. There are other qualified professionals whom courts will accept capacity assessments for but the most persuasive tend to be psychiatrists/psychologists. Their opinion is merely part of the evidence and the factual evidence of a carer or family member may also be relevant and even more persuasive. GPs may not be best placed to provide evidence, as most will have little knowledge of mental capacity and the various legal tests that apply, so the appropriate test should be spelt out, and it should be explained that different tests apply to different types of decision. Any doctor or other medical witness asked to assist in relation to capacity needs to know the area of the alleged protected party’s activities in relation to which his advice is sought. All relevant information should be provided, so when the test is whether the individual is incapable of conducting civil or family proceedings the doctor must be given some idea of the nature and complexity of those proceedings.
The doctor will need to know what decisions the individual will be called upon to make for the conduct of that litigation.
For useful guidance, albeit in the context of a Court of Protection case, as to what experts should take into consideration when providing written reports to the court on the capacity of a party see AMDC v AG and CI  EWCOP 58 at  and the Law Society guide: “Working with clients who may lack mental capacity” (see below). If costs are a concern, you may wish to draft the letter of instruction for your client, but see whether a family member or friend of the protected party will approach the expert, send the letter and arrange the assessment.
Our Associate advises that you should try to avoid bringing any concerns about capacity to the other side’s attention if possible, but often this becomes unavoidable in practice, as if you are in proceedings you will need to bring it to the court’s attention, and in all likelihood will need to apply for a stay of the proceedings so that a decision about capacity can be made and a direction for a capacity assessment report can be given. This application can be made in Form D11 or FP2 and has to be served on the other side.
What do I do if my client won’t consent to a capacity assessment or is unable to give instructions at all, for example if they are in hospital and I cannot contact them?
There is helpful guidance as to what to do if problems arise in obtaining a capacity assessment in the notes to Part 15.1 of the FPR. The Law Society guidance states that if your client objects to you obtaining a capacity assessment, and you still have serious concerns that they lack capacity to provide you with instructions, you should take all reasonable steps to encourage your client to get a report. If they still refuse, you must explain to your client in writing that you are unable to act for them, or if you decide to continue to act without a report you must explain the potential legal consequences, such as a subsequent challenge and the transaction being set aside by a court. This can be a risky strategy and therefore should not be followed without serious consideration and discussion with supervisors and /or the COLP. If you need further guidance as to how to proceed, call the SRA Professional Ethics helpline on 0370 606 2577 and keep a careful attendance note of your discussions. If the client has a relative or friend who is suitable to be a potential litigation friend, you may be able to take instructions from them, depending on the particular circumstances (see the SRA guidance referred to at the end of this article).
If you are unable to speak to your client because of their incapacity and you are unable otherwise to contact them, you still have an obligation to assist the court. Therefore if proceedings are ongoing you may need to make an application to the court for a stay and explain the situation to the court, whilst ensuring that you maintain your client’s confidentiality as far as possible.
If a client has appointed an attorney under a Lasting Power of Attorney (LPA) for property and finances, does the attorney have standing to conduct litigation on behalf of the client lacking capacity?
No. If the attorney is to act on behalf of the client, they must be appointed as a litigation friend (through the procedure set out below) or otherwise obtain the express authority of the Court of Protection.
Can a deputy, appointed by the Court of Protection, conduct ligation on behalf of the protected party?
A deputy might be able to act but only if there is express authority for them to do so in the deputyship order (see ACC & Ors (property and affairs deputy; recovering assets costs for legal proceedings)  EWCOP 9 227 February 2020), so you will need to check this. If the deputy has specific power to conduct legal proceedings they will need to file and serve an official copy of the Court of Protection order on the other parties. Where the deputyship order does not explicitly confer authority for the deputy to conduct proceedings, the deputy is not automatically able to act as a litigation friend and must file a certificate of suitability. Alternatively, a deputy is entitled to make a discrete application to the Court of Protection (CoP) for authority to act as a litigation friend – this application can be made irrespective of the court in which the litigation is taking place. If the deputy is a professional, in order to be paid for their work as a deputy in the litigation proceedings, authority from the CoP to act as a litigation friend will be necessary in any event.
If your client is likely to be awarded funds which they may not have capacity to mange, it might be sensible to make an application to the Court of Protection to appoint a deputy to manage the client’s affairs. If the client still has capacity to appoint an attorney under an LPA to manage their financial affairs, they should be encouraged to do so at an early stage.
How is a litigation friend appointed?
There are three ways a litigation friend can be appointed:
- by an order of the court
- by filing a ‘certificate of suitability’ (in form FP9), or
- where a deputyship specifically order confers the authority on the deputy for them to conduct proceedings on behalf of the protected party (as set out above)
According to FPR r 15.4, a person may act as a litigation friend if that person:
3) (a) can fairly and competently conduct proceedings on behalf of the protected party;
(b) has no interest adverse to that of the protected party; and
(c) subject to paragraph (4), undertakes to pay any costs which the protected party may be ordered to pay in relation to the proceedings, subject to any right that person may have to be repaid from the assets of the protected party.
(4) paragraph (3)(c) does not apply to the Official Solicitor.
FPR r 15.5 sets out the steps which must be taken to appoint the litigation friend without a court order. Unless they are a deputy with express authority to conduct proceedings, they must file a certificate of suitability in Form FP9 stating they satisfy the conditions specified in FPR r 15.4(3) and confirming that they:
a) consent to act
b) know or believe that the protected party lacks capacity to conduct proceedings within the meaning of MCA 2005, the grounds of that belief and whether the belief is based on medical opinion—any relevant document in this regard should be attached to the certificate of suitability, but such documents are not required to be sent by the court when effecting service on a person with a power of attorney in relation to the protected person, or where there is no such person, to the person with whom the protected party resides, or in whose care the protected party is
c) can fairly and competently conduct proceedings on behalf of the protected party and have no interest adverse to that of the protected party, and
d) undertake to pay any costs which the protected party may be ordered to pay in relation to the proceedings, subject to any right they may have to be repaid from the assets of the protected party.
The certificate of suitability must be verified by a statement of truth.
FPR r 15.6 sets out the process for a court appointed litigation friend.
The court may make an order appointing either the Official Solicitor, or a person other than the Official Solicitor, as a litigation friend, where they consent to the
appointment. The order may be made:
1. by the court of its own initiative, or
2. on an application by a party to the proceedings, or
3. on an application by the person who wishes to be the litigation friend for a party to the proceedings
The court may at any time make a direction that a party to the proceedings make an application for a litigation friend to be appointed.
The procedure under Part 18 applies.
What are the duties of a litigation friend?
The litigation friend has a duty to fairly and competently conduct the proceedings on behalf of the protected party. All steps and decisions taken by the litigation friend in the proceedings must be taken for the benefit of the protected party and the litigation friend must have no interest in the proceedings that is adverse to the interests of the protected party.
How is the appointment of a litigation friend terminated?
The court may terminate a litigation friend’ s appointment, or appoint a new litigation friend in substitution for an existing litigation friend. Where an application
is made for such an order or direction, it must be supported by evidence. (FPR 15.7) Where the party ceases to be a protected party, for example, where they have regained or acquired capacity, the appointment of the litigation friend will continue until it is ended by an order of the court. An application for an order to end the appointment of the litigation friend may be made by either the former protected party, the litigation friend or another party to the proceedings. (FPR 15.9)
When can the Official Solicitor be appointed as a litigation friend?
The Official Solicitor is the litigation friend of last resort. No person, including the Official Solicitor, can be appointed to act as litigation friend without their consent. The Official Solicitor will not accept an appointment where there is another person who is suitable and willing to act as litigation friend. The Official Solicitor’s criteria for consenting to act as a litigation friend are:
- in the case of an adult, that the party or intended party is a protected party
- there is security for the costs of legal representation of the protected party which the Official Solicitor considers satisfactory
- the case is a last resort case.
The Official Solicitor’s office may be contacted to discuss the question of a potential appointment, and they are very helpful.
Essential Reading and further sources of useful information
MBL has a useful webinar available on demand entitled: Conducting Litigation on behalf of an incapacitous client – The Options Available (Holly Chandler)
Official Solicitor, contact by phone on 020 3681 2600
Checklist for the appointment of a litigation friend (including the Official Solicitor) – https://www.gov.uk/government/publications/appointing-a-litigation-friendchecklist
Law Society Guide to Working with clients who may lack mental capacity: https://www.lawsociety.org.uk/topics/client-care/working-with-clients-who-may-lackmental-capacity
SRA guidance: https://www.sra.org.uk/solicitors/guidance/accepting-instructions-vulnerable-clients/
Mental Capacity Act 2005: Code of Practice: https://www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpgacop_20050009_en.pdf
Family Justice Council – Capacity to Litigate in Proceedings Involving Children April 2018 here: https://www.judiciary.uk/wp-content/uploads/2018/04/capacityto-litigate-in-proceedings-involving-children-april-2018.pdf (This contains helpful templates (including letters of instruction to treating clinicians) in the Appendices which may also be adapted for financial remedy proceedings)
Part 15 of the FPR 2010 and the 2 associated practice directions can be found in the Family Court Practice and are essential reading