Mental incapacity and civil justice -- the problems which arise in court proceedings involving those who lack mental capacity

Previous articles under this heading (see [1993] Gazette, 28 April, 18 and 12 May, 24) may have given the impression that where one of the parties to litigation is mentally incapable, the procedure for the appointment of a next friend or guardian ad litem is adopted and the process is continued.

In reality the situation may not be so straightforward.

The Supreme Court and County Court Rules assume that it is known whether a party is under disability and, whilst this may be so in respect of an infant, a mentally unstable person may be all too eager to conduct litigation; it has to be determined whether he or she is legally competent to do so.

Assumptions cannot be made on the simple basis of old-age, past residence in a mental hospital or education at a special school -- although such circumstances may give rise to doubt as to mental capacity.

The first problem may therefore be that of whether a party is under disability due to being a patient, ie by reason of mental disorder incapable of managing and administering his or her property and affairs.

This is a question of fact which is determined by the judge on the basis of evidence.

It is the affairs of the party rather than affairs in general that must be considered, so a millionaire is more likely to be found a patient than a person living on state benefits because of the complexity of his or her affairs.

A court can take into account the proceedings before it as part of the affairs of a party, but it is not clear whether incapacity in regard to those proceedings, perhaps due to an obsession, is sufficient if the party is capable of managing the rest of his or her affairs -- although the court may not know what those affairs are.

The law tends to treat capacity as an all or nothing concept, whereas in reality incapacity may be partial.

No-one should be treated as incapable in all things.

It must also be established by medical evidence that the incapacity is due to mental disorder, but the definition in s.1(2) of Mental Health Act 1983 is very broad and, in effect, comprises any identifiable disorder or disability of mind.

Patients may comprise those who are mentally ill -- including the elderly -- suffer brain damage, or are mentally handicapped.

However, being irrational, immoral or even eccentric will not by itself be sufficient, and the definition specifically excludes dependence on alcohol or drugs (see s.1(3)).

How can it be established whether these criteria are satisfied? Little evidence may be available, and mental illness may manifest itself for the first time during the course of the proceedings.

The judge may be prepared to conclude that a party is incapable of managing his or her affairs by reason of the party's conduct in, or giving rise to, the proceedings.

The question then is whether this is by reason of mental disorder.

Many people are incapable of managing their affairs in what the rest of us would consider to be a sensible manner, but the law will not intervene unless this is due to men tal disorder.There is no great difficulty in obtaining a medical report in the case of an unco-operative plaintiff because once the issue of capacity has been raised the judge may stay the proceedings until it has been determined.

The plaintiff must then submit to a medical examination if he or she wishes to continue.

However, a party is presumed to be capable until the contrary is proved; it is therefore suggested that a plaintiff could not be ordered by the court to arrange and pay for his or her own medical report as a condition of pursuing the proceedings.

The onus of proof is upon the party alleging the incapacity, but any medical evidence obtained by that party could later be rebutted by medical evidence introduced by the party whose capacity has been questioned.

A defendant who appears to be under disability but will not co-operate with a medical examination presents a problem to the court.

An order that 'unless the defendant submits to a medical examination he shall be deemed to be a patient' may be tempting, but it is submitted that a finding of mental disorder must be based on evidence and cannot arise by default.

The court has no alternative sanction to impose, as a stay of the proceedings until medical evidence is available merely prejudices the plaintiff.

There is no procedure for a medical visitor to make enquiries and report at public expense similar to that available under r.66(1)(b) of the Court of Protection Rules 1984, so reference to the official solicitor may be appropriate if there is serious doubt as to capacity.

When it appears -- or is suggested -- that there are reasons to doubt his or her client's capacity, a solicitor should advise that medical evidence be obtained.

The client may be unwilling to co-operate, perhaps because of the mental disorder, and purport to dismiss the solicitor.

Failing this, the solicitor can apply to be removed from the record.

Under the rules the other party has no say in that application, but the court may be reluctant to be faced with a potentially incapable litigant in person when a solicitor has hitherto acted.

Whilst it would be wrong to oblige the solicitor to continue to act where the solicitor/client relationship has broken down, and the retainer might in any event terminate by operation of law if the client is under disability, the court may wish the solicitor to remain on the record until this issue has been determined, especially where legal aid is available to meet the costs.

It is doubtful whether the court could decline to accept a notice that the party is acting in person until capacity has been determined.

In any case, where the retainer terminates due to mental incapacity the solicitor should take reasonable steps to ensure that the client's interests are protected.

This may involve contacting relatives and also the Court of Protection or the official solicitor.

Is there a conflict between the duty of the solicitor to the court and to the client? It is in the best interests of the client that a decision is reached as to whether or not he or she is a patient, and a solicitor who continues to act for a client who is a patient can be liable for costs.

It is therefore appropriate that the solicitor co-operates with the court in considering whether the client is a patient if this issue is raised by the other party or the court, and the solicitor should raise the issue him or herself if doubt arises.How should a solicitor deal with obsessive litigants in person who issue a spate of proceedings of doubtful substance based upon some grievance? The proceedin gs tend to involve public bodies (often DSS and health authorities) and subsequently other parties such as solicitors (and even judges) are caught up in the saga.

It can prove expensive for those involved because the plaintiff is usually impecunious.

No amount of advice will dissuade the plaintiff from litigation and ultimately he or she becomes convinced that everyone is conspiring against him or her, including those who give such advice.

Applications to have such a person declared a vexatious litigant are unusual, but if the plaintiff appears mentally unbalanced it may be worth alleging that he or she is under disability so that a next friend can be appointed before the proceedings are allowed to continue.

Once that appointment is made the proceedings will be stopped in their tracks unless an equally obsessive next friend is appointed.

If the plaintiff has made a thorough nuisance of him or herself the judge may welcome this solution.

Refusal by the plaintiff to submit to a medical examination could result in a stay of the proceedings until the reasonable doubt of capacity has been resolved.

The plaintiff, being persistent by nature, will almost certainly seek to appeal any finding against him or her, but that will at least direct all current litigation towards the relevant issue -- namely, is the plaintiff fit to issue proceedings? Unless the plaintiff proves competent in the conduct of his or her appeal, it is likely to fail but if this strategy is adopted and fails you will merely have added to the plaintiff's grievances.

How is an order against a patient enforced? In Wookey v Wookey [1991] 3 All ER 365 the Court of Appeal held that an injunction can be granted against a patient even if a guardian ad litem has been appointed, but not if he or she is incapable of understanding what he or she is doing or that it is wrong, as the patient would not be capable of complying with it and would have a defence to any subsequent application for committal.

Injunctions should not be granted if they cannot be enforced, but the fact of disability is not in itself a defence to a charge of contempt of court.

This is an acknowledgement that a patient may not be incapable in all respects.

When considering domestic violence, the courts concentrate upon the deterrent aspects of an injunction rather than relief of the applicant who is thought to be adequately protected under the public law powers in the Mental Health Act 1983.

Of course, the medical authorities may take a different view of their powers under the Act, thereby leaving individuals vulnerable to abuse where the courts are incapable of granting relief.

Except in criminal proceedings, it appears that the courts do not have the power to require a person to submit to treatment, or the authorities to provide treatment.

Wookey v Wookey held that s.14(4) of the Contempt of Court Act 1981 empowered the court to make a hospital order where the party was suffering from serious mental incapacity at the time of the contempt proceedings, but if that incapacity had existed earlier it would have precluded any contempt.

Equally, the powers in the 1983 Act will not assist in mandatory orders where the penal notice procedure is usually used to secure compliance.

However, the court may be able to word the order in terms which provide practical assistance, such as declaring that a party has a right to enter a property where a patient is the occupier and will not comply with an order for inspection.

Any solicitor contemplating applying for an injunction against a party whose behaviour creates a real suspicion of mental incapacity should refer to the official solicitor at an early stage.

In addition to the practical needs of the court and other parties to litigation, it is necessary to consider the protection of the incapacitated party.

Although providing a procedure for the appointment of a representative to conduct the litigation, the rules do not address fundamental aspects of decision-making for people who lack mental capacity, despite the fact that decisions relating to litigation are likely to be among the more important made on their behalf.

There is minimal guidance as to who should be appointed or on what basis that person should act, no supervision of the representative except in regard to compromise or settlement of claims, and the appointment, once made, lasts for the duration of the proceedings.

Total delegation is imposed, despite the fact that the individual may have some capacity, and no mention is made of a duty to consult with or involve the individual, even as to the choice of representative.

In the county court it seems that the person under disability does not even need to be notified of the proceedings in which he or she is involved, notwithstanding that the person may dispute the incapacity.

In the High Court a next friend or guardian ad litem can only act by solicitor, but not all solicitors realise that the client is the patient in whose best interests they should act, rather than the representative through whom instructions are received.The rules provide a primitive procedure for delegation to a representative who may have no authority outside the court proceedings.

In its consultation papers, the Law Commission proposed that a judicial body should have jurisdiction over the financial and personal affairs of patients with powers to obtain any necessary medical evidence and determine whether an individual comes within the jurisdiction.

It could also have power to secure any necessary support for the patient and, in so doing, arrange supervision or restraint so as to protect the interests of other members of society.

The answer to the problems identified here would be for courts dealing with ordinary litigation to refer issues of incapacity to such a judicial body which could appoint and supervise a financial and/or personal manager whose duties would include conduct of that litigation.

Whilst this is presently the situation where a receiver has been appointed by the Court of Protection before litigation is commenced, in many cases an application is only made to that court upon conclusion of the litigation, and because of the need to administer the damages already ordered.

This leaves ordinary courts with the responsibility to decide questions of mental capacity and deal with the appointment of a representative, a task for which they are ill-equipped.