This issue arose recently in a case I was assisting with. The vulnerable individual concerned was facing enforcement proceedings for failing to meet mortgage payments. They appeared to lack capacity to deal with their finances and to conduct court proceedings. In particular, they did not appear to understand information relevant to paying the mortgage, or the enforcement proceedings that followed. They were not able to retain the information provided, they could not weigh up relevant information as part of the decision-making process, and they could not clearly communicate their decision, in spite of various attempts being made to try to help them to understand the information.

In these circumstances, it would be usual to arrange an assessment of the individual’s capacity. In this case, it was relevant to assess capacity to deal with their property and financial affairs and to conduct the court proceedings. A capacity assessment can be undertaken by a psychiatrist, psychologist or other medical practitioner who is familiar with the individual and who has knowledge of mental capacity and the legal tests that apply. Some social workers are accredited to undertake capacity assessments. Opinions can also be sought from family or carers, particularly if there is a lack of medical evidence. The purpose of the capacity assessment is to determine whether the individual has capacity to make the particular decision(s) in question. If the person assessing capacity agrees that the vulnerable individual lacks capacity to deal with their property and finances and to conduct court proceedings (confirming this in a COP3 form) it is possible to make an application to the Court of Protection to become a property and financial affairs deputy for the vulnerable individual. If the application is successful, the deputy then has authority to make financial decisions on behalf of the vulnerable party that are in their best interests. The deputy order can also include authority to become litigation friend to the vulnerable individual. This gives authority to the deputy to conduct court proceedings on behalf of the vulnerable individual.

In the case I was assisting with, the vulnerable individual did not accept that they lacked capacity to deal with their property and finances or conduct court proceedings. They also refused to comply with a capacity assessment. What can be done to deal with such situations since a court cannot compel an individual to comply with a capacity assessment? If there is any doubt as to whether someone involved in a court case has capacity to make the decision in question, it is necessary for the court proceedings to be put on hold (stayed) until the issue is resolved. The vulnerable person needs to be notified that their capacity is in issue, so that they have the opportunity to arrange their own representation and possibly challenge the decision before a judge. It is possible for the judge to compel witnesses to attend court. This can include medical witnesses and either/ both of the parties involved in the court case. The judge can also request relevant documents. If there are problems in obtaining medical evidence the judge can ask the Official Solicitor to make inquiries and report to the court on capacity issues. Ultimately, the judge determines whether an individual has capacity. The judge makes the decision based on evidence, including medical evidence and evidence from those who know the individual, as well as based on their own observations of the individual. If there is a dispute about capacity the judge decides the issue as a question of fact on the balance of probabilities.

If the vulnerable individual lacks capacity, and there is no one else suitable who can act as litigation friend for them in court proceedings, the Official Solicitor can be invited to take on this role as a last resort. The Official Solicitor will ask the vulnerable individual to complete a certificate as to capacity.

Should capacity issues be dealt with by the civil court or Court of Protection?

The civil courts can deal with decisions regarding litigation capacity. However, they cannot make decisions regarding capacity to manage financial affairs or welfare issues. The Court of Protection can deal with all of these issues, so it may be necessary for civil proceedings to be put on hold until the Court of Protection deals with relevant capacity issues and/or appoints a deputy, particularly if there are financial and/or welfare decisions that need to be made. The Court of Protection also has wider powers than the civil courts to deal with vulnerable individuals.

If there are any concerns that one of the parties in a court case lacks capacity, this should be highlighted to the judge at the earliest opportunity. It is important to remember that someone’s capacity needs to be assessed in relation to the particular decision in question, since someone may have capacity to make certain decisions, such as in relation to their day-to-day care, but lack capacity to make decisions in relation to more complex decisions about their finances or court proceedings.