Diagnosing a patient

District Judge Gordon Ashton on the prescribed Court of Appeal test for who is a patient

At last we have an appeal decision on the test for a 'patient', namely: '...

a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing and administering his property and affairs.' But the Court of Appeal decision in Masterman-Lister v Brutton & Co and Jewell & Home Counties Dairies [2002] EWCA Civ 1889; [2002] All ER (D) 297 (Dec), creates more problems than it solves.

This test has been around for many years and applies, with minor variations, in three situations: first, it provides the jurisdiction of the Court of Protection ((part VII) section 94(2) of the Mental Health Act 1983); second, it defines persons whom cannot conduct their own court proceedings without a representative (now a litigation friend under the Civil Procedure Rules 1998); and third, it prevents time running under the Limitation Act 1980 (section 28(1)).

Surely, a patient for one purpose is also a patient for the other two? Not so, says the appeal court.

The Court of Protection must take into account all the financial affairs of the individual but for civil you only need to consider capacity to manage those proceedings.

And to stop time running? Watch this space.

The judgment confirms some key points, including that 'affairs' does not extend to physical care, adults are presumed to be competent (though the presumption of continuance once incapacity is established was doubted), the burden of proof rests on those asserting incapacity, the test is based on understanding and applied on the balance of probabilities, and the final decision rests with the court.

There is guidance for district judges who should require a medical report before being satisfied that incapacity exists and may need to see the person alleged to lack capacity.

There is confirmation that this person should be informed of what is going on in his name - in this respect the court rules were held not to be human rights compliant.

There is also help for practitioners.

Litigation by a patient is ineffective but the court can regularise the position retrospectively, provided everyone has acted in good faith and there is no disadvantage to the party found to have been a patient.

The court was anxious not to allow the settlement of an old claim to be re-opened despite evidence that the original claimant was incapable of managing and administering his damages.

Relying on the fact that at common law the test of mental capacity is issue-specific, the court chose to interpret 'property and affairs' in the court rules as being restricted to the claimant's immediate problems.

So, despite the wording of the rules, the test becomes one of capacity to manage the particular proceedings or, where a solicitor is engaged, to give instructions.

In reality, it was not necessary for the court to engage in these judicial gymnastics because the substantial damages would not become part of the affairs until the proceedings were concluded.

We now have the prospect of a party needing a litigation friend for complex proceedings but not, for example, in the small-claims track.

Presumably, if the Court of Protection is already involved he would need a litigation friend even if capable of conducting the proceedings, but what if there is an enduring power of attorney or a substantial interim payment? The legal diagnosis of a patient has become more problematical.

District Judge Gordon Ashton sits at Preston Combined Court Centre and is a Deputy Master of the Court of Protection