Litigation capacity: what to do

A recent Court of Appeal child care case has emphasised the need for robust capacity assessments where mental capacity is in doubt. The Court of Protection team at 39 Essex Chambers reports.

The case of Re D (children) [2015] EWCA Civ 749 concerned a care and placement order made in respect of a 20-month-old girl. The parents were vulnerable young adults who had significant learning difficulties.

The mother, who was 19 years old, was assessed by a consultant child psychiatrist as lacking capacity to instruct a solicitor. She was therefore represented by the Official Solicitor as her litigation friend who consented to the care and placement order on her behalf. At a subsequent hearing, the mother made an informal request to the judge for a further assessment of her capacity to litigate by another expert and the judge agreed. The expert concluded that the mother had capacity.

The Court of Appeal was highly critical of the way in which the mother’s capacity had been assessed and considered that it amounted to serious procedural irregularity. However, on the facts, the Court of Appeal concluded that there was no practical difference to the outcome as a consequence and the proceedings, including the care and placement order, were retrospectively validated.

Comment

It is impossible to stress strongly enough the importance of obtaining a robust capacity assessment where mental capacity is in doubt. Although the issue of capacity made no difference to the eventual outcome on the facts of this case, there are many other cases where the outcome will depend crucially on the assessment of capacity. Even if there would be no difference to the practical outcome, it is essential to ensure procedural fairness and to safeguard rights under Article 6 ECHR. It is also in the interests of all parties and the court that further time and costs are not incurred further down the line due to unresolved issues surrounding capacity which could have been addressed at the outset.

The Court of Appeal emphasised the following points which are of significance to practitioners:

• If either party takes issue with the outcome of a capacity assessment, it is open to that party to apply to the court for a second report by a different expert. In this case, no application was made by those representing the mother for permission to put expert evidence before the court. No consideration was given to whether a further assessment was necessary.
• The purpose of the prescriptive approach to the instruction of experts found in the Family Procedure Rules 2010 (and by analogy the Court of Protection Rules 2007) was to ensure that an expert dealt with the relevant issues. Failure to provide an adequate letter of instruction, or all of the relevant documents, could lead an expert failing to apply the correct test or adequately addressing the key issues which, in turn, could lead to delay. The letter of instruction wholly failed to comply with the relevant practice direction.
• Where a report was deficient or revealed a disagreement in view as between other experts, the Rules provided for written questions to be put to the expert and for an experts’ meeting with a view to reaching agreement or at least narrowing the issues between them. Absent agreement between the experts, the court would hear evidence and make a determination. In this case, one expert report made no reference to MCA 2005 and the MCA 2005 test did not feature in the report. The other conflicting report was not brought to the attention of the judge and no consideration was given as to how to resolve the conflict, whether by additional questions, an experts meeting or by hearing short oral evidence.
• Although process should never be slavishly followed at the expense of achieving the right welfare outcome without delay, the informal course adopted in this case, which Lady Justice King called “procedural anarchy”, went far beyond a pragmatic and practical approach to case management and amounted to serious procedural irregularity.

This article was written by the Court of Protection team at 39 Essex Chambers.