Q I am representing a long-standing client who is the claimant in occupiers' liability proceedings before the High Court.

Over the past few weeks, I have had growing concerns about my client's mental capacity.

When I see my client, his wife is usually present.

She telephoned me last week expressing similar misgivings about her husband's mental health, which made it easier to persuade my client to agree to a medical examination.

The psychiatrist has reported that my client does not satisfy the relevant test of capacity to continue the litigation.

I remember a recent Question of Ethics about mental incapacity, which seemed to imply that the Public Guardianship Office would have to become involved in the proceedings.

Is that the case?

A The question (see [2002] Gazette, 5 December, 32) was framed in general terms without differentiating between contentious and non-contentious retainers.

Under section 96(1)(i) of the Mental Health Act 1983, the Court of Protection may give directions or authority regarding the conduct of legal proceedings in the name of a patient.

However, an application to the court may be unnecessary if there is otherwise no need for Court of Protection involvement, such as assets to administer.

If there is a family member, friend or other suitable person with capacity who has no interest adverse to the patient, and who is willing to act as litigation friend for the purposes of the litigation, he can be appointed under part 19 of the Civil Procedure Rules.

Alternatively, the Official Solicitor may be prepared to act as litigation friend if there is no such suitable person willing to accept appointment.

Our answer to the previous question also touched on the process of obtaining a medical report.

We said there that the client's consent would be needed to approach the doctor.

This is a difficult issue because a client who lacks capacity cannot validly give (or withhold) consent.

In practical terms, a solicitor who reasonably believes that a client lacks, or may lack, capacity should be guided by what he considers to be in the best interests of the client, which may be to contact the doctor despite the absence of consent.

Telephone hotline

The professional ethics lines are open for general enquiries between 11am and 1pm, and 2pm and 4pm.

The lines are less busy in the afternoon.

It takes emergency calls outside these hours, tel: 0870 606 2577.

Question of ethics is compiled by the Law Society's professional ethics guidance team.

Send questions for publication to Austin O'Malley, the Law Society, Ipsley Court, Berrington Close, Redditch B98 0TD; DX 19114 Redditch; tel: 020 7242 122