Full capacity: should you take instructions from client?

With increasing awareness of mental health issues, and increasing numbers of people living with conditions such as dementia, we will all be faced with friends, relatives and clients for whom the question of mental capacity will arise.

Capacity issues can be tricky to navigate when they do arise, as every case is different. Capacity moves along a scale, sometimes abruptly, sometimes gradually; and sometimes it recovers.

This can happen over the course of your instruction, or from day to day. We all have a client who becomes too busy to concentrate on their instructions to you, or who breaks down at mediation or at court. Perhaps more unusual would be a client who has suffered a head injury or develops dementia while you are instructed.

But which of these clients has capacity to instruct us and which does not? What follows are a few points to be borne in mind by practitioners encountering questions of mental capacity on a more indirect basis.

Understand, decide, communicate

The Mental Capacity Act 2005 (MCA) is generally a good place to start when faced with an issue involving mental capacity. The MCA (in force since 2007) both defines the test for mental capacity and deals with issues faced in relation to those who lack capacity.

The MCA is supplemented by non-legally binding guidance in the form of the Code of Practice, which is currently subject to consultation. The test for capacity is issue specific, but in almost all cases, the applicable test is set out at s2(1) of the MCA and further explained at s3: in essence, a person must be able to understand, retain and weigh up information to make a decision and communicate it.

The most common exception is the test for capacity to make a will, which remains the Banks v Goodfellow test.

Throughout the case

There is a presumption in favour of capacity, but where a solicitor has concerns, they should consider it further. The test for capacity is specific to the particular decision and it can fluctuate or deteriorate.

Capacity should be kept under review throughout a case. Think about the client who tells you that he wants to make an LPA in favour of his new partner. You ask a few questions – they are a similar age, have only been together a few months but she is independently wealthy.

The first question is whether he has capacity, and only then would you discuss whether she is a suitable attorney. You might decide to probe further before making the LPA, or even to obtain a specialist capacity report. Consider also how advice is communicated.

Clients might not be able to assimilate or retain complex information provided in a letter, but if you provide diagrams or speak to them they might be perfectly capable of making the decisions required.

There might be better or worse times of day to speak to them. This is envisaged by s1(3) of the MCA. A client might suffer a stroke during the course of your matter, or hit their head in a cycling accident.

They might need greater assistance to provide instructions, or, even lose capacity to instruct you, so that they require an attorney, deputy or litigation friend (depending on the level of capacity and the stage in proceedings). This could be temporary or permanent. 

Another client might need time to reflect on advice given to him. If so, he might have capacity to take advice, but not to engage in active litigation. That client might retain capacity to appoint an attorney, or to liaise with the litigation friend to discuss the case as it progresses.

Alternatively, an attorney (under an LPA or EPA), or a deputy, might approach a firm to take advice on behalf of the protected party. If the protected party lacks capacity to instruct you, the attorney or deputy can take the requested advice on their behalf. We often think about litigation friends in the context of minor children, rather than adults who lack capacity, however, both are circumstances where they are required; whether you are considering an individual or (if no one else is available to act) the Official Solicitor.

If you provide diagrams or speak to them they might be perfectly capable of making the decisions required. It is worth remembering that just because a client does not need an attorney or deputy in other areas of their life, does not mean that they are capable of conducting litigation; and just because they have an attorney does not mean that attorney is necessarily best placed to act as their litigation friend if one is needed.

Opponent lacking capacity

Conversely, a solicitor is sometimes presented with an opponent (or rather, their client’s opponent) seeming to lack capacity. They may be acting in person, in which case an attorney, deputy or litigation friend might need to be found; or their solicitor may be unaware of, or have overlooked, concerning behaviour.

Where the opponent lacks capacity, the first step is to explain your concerns, for instance by giving examples of behaviour which contradict the position advanced by that party.

It can be helpful to set out the appropriate test for capacity and a reminder that it is issue specific – it is surprising the number of profes- sionals who still think that someone lacks capacity simply because they are an alcoholic, or has (unspecified) ‘capacity’ because they report doing the crossword each day.

An opponent might be justifiably unaware of factors which give rise to your concerns about their client’s capacity, because they have not been provided with full instructions, for instance, if their client tells them about a child who never visits, but that child lives abroad and calls regularly, or has been verbally abused when she visits; their client tells of her husband’s affairs, when the husband is housebound; or their client thinks he has provided for a child or spouse, when he simply has not done so.

Limitation and other pitfalls

It is important to remember that limitation does not run where a party is under a disabili- ty, that is, a minor or protected party (Limitation Act 1980, s28(1)).

This can be important whichever party you represent. If there is a protected party, only very limited steps can be taken in litigation before the appointment of a litigation friend.

If the protected party is the claimant, they will need a litigation friend to issue the claim; whereas if the protected party is the opponent, until they have a litigation friend, it is only possible to issue and serve the claim form, and (if necessary) apply for the appointment of a litigation friend (CPR 21.3).

If a party loses capacity during proceedings, the claim is effectively stayed until a litigation friend is appointed, or the court orders otherwise (CPR 21.3(3)). Even if the parties do not get as far as litigation, and are able to settle their claim, the settlement will need to be approved by the court by way of a part 8 claim (CPR 21.10(2)).

The court has recently confirmed in Revill v Damiani [2017] EWHC 2630 (QB) that where a settlement involves a protected party, either party can withdraw until it has been approved by the court.

While this can be used tactically, most parties would like the settlement to be the end of the matter. With any financial settlement, if the protected party does not have an attorney, it is important to consider when an application should be made to the Court of Protection for the appointment of a deputy, to whom the court can order payment of the sum.

Know your client

As you can see, capacity issues can arise on any type of file and we should all keep capacity at the forefront of our minds, throughout each instruction, and act on any changes which we see.

It pays for all of us to be aware of who our client is, whether they should be providing instructions personally or through a representative, and to constantly keep it under review.

A cautionary tale arises from the extreme example of a solicitor who, when their client died ahead of an appeal hearing, did not inform the court or his opponent of the death and take advantage of the stay in proceedings to regularise the situation; but simply took instructions from the client’s child, as if nothing had changed.

The child even paid funds on account and thought that the solicitors would protect his personal interests at the hearing. The solicitors would have been better to have paused to consider their instruction, rather than take the time and cost of dealing with the complaint which no doubt followed.

Hannah Mantle is a senior associate at Russell-Cooke russell-cooke.co.uk