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Family lawyers constantly deal with individuals in a state of distress and heightened emotions; some of which also suffer with mental health issues. This is sometimes as a result of the inevitable stress that comes with a family breakdown.
Issues therefore often arise as to the capacity of certain clients. The question is however what checks and balances are in place to ensure that vulnerable clients are protected and also which procedures are in place to ensure that these clients’ interests are properly represented within proceedings?
Pursuant to section 2 of the Mental Capacity Act 2005, ‘a person lacks mental capacity if at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary’.
For the purposes of section 2, a person is unable to make a decision for themselves if they are unable:
• To understand the information relevant to the decision;
• To retain that information;
• To use or weigh that information as part of the decision-making process; or
• To communicate their decision (whether by talking, using sign language, or any other means).
As such, the question of capacity must be determined to some degree by the Family Lawyer dealing with the specific individual; taking into consideration that an individual may lack the capacity to make a particular decision at a particular time and this does not necessarily mean that they will lack the capacity to make that same decision at a later stage, or indeed that they lack the capacity to make another decision at the point in time in question. A client cannot however be considered to lack capacity simply because they have made an unwise decision.
If you are unsure as to whether your client lacks capacity, the first step would therefore normally be to discuss this with the client themselves and ask for their permission to contact their GP to carry out an assessment.
What if my client is found to be lacking in capacity?
To understand how this will affect ongoing proceedings and how to ensure your client’s interests can continue to be effectively represented, reference must be made to part 15 of the Family Procedure Rules.
Rule 15.2 states that ‘a person who lacks capacity to conduct the proceedings (a ‘protected party’) must have a litigation friend to conduct the proceedings on their behalf’.
Rule 15.3(1) of the FPR states that ‘until the protected party has appointed a litigation friend: ‘A person may not without the permission of the court take any steps in proceedings accept:-
(a) Filing an application form; or
(b) Applying for the appointment of a litigation friend.
Rule 15.3(3) also states that any step taken before a protected party has a litigation friend has no effect unless the court orders otherwise.
This is fundamental to ensuring that the protected party is not prejudiced pending the appointment of a litigation friend on their behalf.
Official Solicitor or Litigation Friend?
The Official Solicitor will only be invited to act for the protected party as litigation friend if there is no other person suitable or willing to act. It is therefore necessary to look to the protected parties’ friends or family first, or a member of their care team for a suitable individual. The Official Solicitor must always therefore be considered as the litigation friend of last resort.
A person may act as a litigation friend if (following rule 15.4(3)):
• They can fairly and competently conduct proceedings on behalf of the protected party;
• They do not have any interest adverse to that of the protected party; and
• They 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).
A litigation friend may be appointed by the court or upon application by a party to proceedings or prospective litigation friend so long as the prospective litigation friend consents (rule 15.6). A litigation friend may also be appointed without an order by filing a certificate of suitability in form COP22 (rule 15.5).
The court also has the power under rule 15.7 to direct that a particular person may not act as a litigation friend, to terminate a litigation friend’s appointment and to appoint a new one in substitution for an existing one.
Furthermore the appointment of a litigation friend is a matter for the person lacking capacity and their legal representative and should not involve the input of other parties to the proceedings.
It is also to be noted that there are very different degrees of vulnerability and how best to support and assist clients can be an area of concern and confusion; particularly to less experienced Lawyers.
It is imperative that Lawyers should therefore access support from a colleague/supervisor as well as the above guidelines to ensure that they are providing the appropriate level service; furthermore, all solicitors are also bound by the SRA Code of Conduct and in particular Principle 5, which states that ‘solicitors should provide a proper standard of service to their clients’. This includes those with capacity issues.
A good place to start for any Family Lawyer would be to consult Part 15 of the FPR as the rules provide for numerous checks and balances to be carried out in order to ensure that vulnerable clients are protected. Careful consideration should also be paid to these rules when attempting to appoint a litigation friend for a client either by or without a court order to minimise any delays in proceedings and to ensure the case can progress appropriately and fairly.
If you would like to discuss the above article please contact Ruby Hussain at our Telford Office or email firstname.lastname@example.org. Alternatively please call Head Office on 01743 285888 and we will ensure someone can assist you.
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