“A person will lack capacity if they cannot understand information relevant to the decision or retain that information or use of weight that information as part of the process of making the decision or communicate the decision (by any means) and their inability to do so is because of an impairment or disturbance in the functioning in the person’s mind or brain.”
So what does this mean in practice? Whilst representing a parent in care proceedings, we spotted concerns about their ability to understand the proceedings and provide clear instructions. An intermediary assessment was undertaken, which concluded that the client required an intermediary in meetings, and if and when they may give evidence. As the case continued, we, including the intermediary, remained worried about the client’s capacity. The client dismissed the advice given and as a result, repeatedly provided contradictory instructions. The observations were discussed with the client, explaining (with the support of the intermediary) what a capacity assessment involved and our view that an assessment of their capacity was necessary. The client agreed but changed their position several times as the arrangements were being made. The intermediary explained that this was the client’s way of dealing with difficult situations and not fully understanding the implications of these rash decisions. This itself added to the concerns we held.
The assessment did eventually go ahead. The expert found that the client did in their view have litigation capacity.
Our difficulty was, as we were not the expert in capacity assessments, we could no longer question the client’s capacity issues, since it was found that there were none.
This left us in a very interesting predicament as one of our roles as legal representatives, is to raise observations and consider which assessments may be necessary for a client. The task of carrying out the assessment then gets passed to the expert. We rely on this ability and the assessment outcomes heavily, as do the courts, as these assessments help us navigate how we communicate and generally work with a client. But what do we, as legal professionals, do if we still worry about a client’s capacity?
Of course, we could get a second opinion but that would involve the court approving a new assessment. So, we had to ensure that we were following the guidance of the expert (psychologist and intermediary) on the letter. With the help of these experts, we further adapted the way in which we advised the client to best ensure they understood the advice we gave, and in the hope that they could in turn provide clear instructions in their case.
Litigation capacity is a key issue in Children Act proceedings as the court is making long term decisions about a child’s future based on their instructions. If a client does not understand the concerns, it stands that they cannot give proper instructions. It is essential for us as practitioners to remember the importance of noting and following the guidance set out by experts instructed in a case and ensure we are providing our clients with clear and easy to understand advice during the proceedings and also making sure to highlight any concerns we may have. Also key to note is that litigation capacity can fluctuate, so it may need reviewing at various points during the proceedings.
The Official Solicitor has very recently issued a new capacity:
There is also guidance on the Law Society website:
Trainee Solicitor – Care
National Legal Service