Client Incapacity

The Professional Conduct and Complaints Committee (now called the Conduct Committee) issued general guidance for Counsel acting for a lay client in civil, family or criminal proceedings, who has doubts about the client’s capacity to understand advice, give instructions, or follow or take part in the proceedings, either by reason of mental disorder or by reason of temporary intoxication.

1. Incapacity by Reason of Mental Disorder

Counsel should be familiar with the standard texts on the current law and practice relating to: -

A client being a “patient” for the purpose of conducting civil or family proceedings (and in particular the recent decision of the Court of Appeal in Masterman-Lister v Brutton & Co [2003] 1 WLR 1511, which emphasises that capacity is issue specific, so that for example a client may have the capacity to conduct relatively simple litigation but lack the capacity to conduct more complex litigation);
A client being a “patient” for the purpose of managing money and property so that his money and property is under the control of the Court of Protection; and
A client being “unfit to plead” for the purpose of criminal proceedings.

Counsel should also be aware that the Mental Capacity Act 2005 has received the Royal Assent and only awaits a commencement order to bring it into force. While the new Act will not greatly change the definition of capacity and incapacity, it will confer a much more extensive jurisdiction on the Court of Protection and is likely to result in considerable procedural changes.

As the law and practice presently stand, the PCCC’s advice is as follows: -

If Counsel reasonably suspects that the client is or may be a “patient” (for any relevant purpose) or “unfit to plead”, Counsel clearly needs to proceed with great care, in particular since:

If Counsel doubts the client’s capacity to give instructions, it follows that Counsel cannot be certain that it is proper to act on any instructions which the client may purport to give (although, even where a client definitely lacks the capacity to give instructions, Counsel should seek the client’s views and take them into account);
Additionally, where litigation is being privately funded by the client, the propriety of Instructing Solicitor accepting funds from the client may be in doubt;
Moreover, revealing Counsel’s suspicion that the client lacks capacity to the client may well be offensive, and revealing the suspicion to the Court and any other party may well be unauthorised and/or highly prejudicial.

Each case will be different, but the following stage by stage approach is suggested.

In the first place, Counsel should discuss the question of the client’s capacity with Instructing Solicitor (who is likely to have had more contact with the client than Counsel has).
If, having discussed the question of the client’s capacity with Instructing Solicitor, Counsel still reasonably suspects that the client lacks capacity and, if Counsel has not already met the clients, Counsel should, if practicable, meet the client. Whether or not Counsel meets the client, if Counsel’s concerns about the client’s capacity persist, Counsel should ensure that the client is informed of those concerns as tactfully as possible, and that any comments which the client has to make on the issue of capacity are obtained and taken into account.
If, at this stage, Counsel still reasonably suspects that the client lacks capacity, Counsel should advise that evidence about the client’s capacity is obtained. Clearly, obtaining the necessary time, funding (particularly if there is doubt about the propriety of relying on private funding from the client), and cooperation from the client, may all be problematic. If an adjournment of a hearing is necessary, Counsel will obviously need to be discreet in informing the Court and any other party about the reason, but must not be misleading. Circumstances may justify simply saying that Counsel and Instructing Solicitor are in a situation of professional embarrassment which makes it impossible for them to proceed immediately, the nature of which they are not currently at liberty to reveal, and which they need time to resolve.
Counsel should bear in mind in advising that it may be appropriate for Instructing Solicitor to seek advice and/or assistance from the Official Solicitor (or additionally, in family proceedings, CAFCASS Litigation). Evidence about capacity from lay people who know the client well may be useful, although, by its very nature, it may not be independent or disinterested. Evidence from the client’s GP may be very helpful, if the client will permit it and the GP knows the client. A report from a suitably qualified Medical Expert (normally, a Consultant Psychiatrist approved for the purpose of section 12 of the Mental Health Act 1983), based on an examination of the client, the client’s medical records and any of the other evidence obtained, is usually essential. Counsel is entitled to advise the client to cooperate in the obtaining of medical evidence, but is not entitled to insist on the client doing so.
If, in the light of such evidence, if any, as can be obtained, Counsel still reasonably suspects that the client lacks capacity, Counsel should, if practicable, meet the client again, and should, in any event, ensure that any further comments which the client has to make are obtained and taken into account, and should discuss the issue of the client’s capacity further with Instructing Solicitor.
If, having done so, Counsel still reasonably suspects that the client lacks capacity, Counsel should at this stage advise that the appropriate Court be informed of the client’s suspected lack of capacity.
If this advice is accepted and followed, well and good.
If the client rejects this advice but Instructing Solicitor nonetheless accepts it, in the PCCC’s view, the Court should be informed of the client’s suspected lack of capacity (which, in the absence of any special application, will normally mean informing any other party to the proceedings), even if the client purports to forbid this. In the PCCC’s view, this is a situation where Counsel’s duty to the Court overrides the client’s purported instructions, even if the client subsequently turns out to have capacity. Disclosure of the client’s suspected lack of capacity is necessary for the protection of the client, in case the client lacks capacity, and may be necessary for the protection of Counsel and Instructing Solicitor, since, as pointed out above, if the client lacks capacity to give instructions and/or to authorise private funding, Counsel and Instructing Solicitor cannot properly be acting on the basis of the client’s instructions and/or any such funding.
Once the client’s suspected lack of capacity has been disclosed to the Court:

a) If the client’s capacity to conduct civil or family proceedings is in question, that question can be determined by the civil or family Court, and, if the client is a “patient” for that purpose, in civil proceedings a “litigation friend” or in family proceedings a “next friend” or “guardian ad litem” can be appointed to conduct the litigation on the client’s behalf;

b) If the client’s capacity to manage any money or property is in question, that question can be determined by the Court of Protection and, if the client is a “patient” for that purpose, his money and property can be placed under the control of the Court of Protection; or

c) If the client’s capacity to defend criminal proceedings is in question, the issue of “fitness to plead” can be determined by the criminal Court.
If, however, both the lay client and Instructing Solicitor reject Counsel’s advice that the client’s suspected lack of capacity be disclosed to the Court, Counsel will probably be in such a situation of professional embarrassment that the only proper course will be to withdraw from the case.

2. Incapacity by Reason of Drink/Drugs

(A) Client still capable

If a client attends Court under the influence of drink or drugs, but Counsel reasonably believes that the client is still capable of understanding advice, giving instructions, and following and, if necessary, taking part in the proceedings, Counsel’s duties are as always: -

(1) Counsel’s overriding duty to the Court, in particular not to mislead the Court; and

(2) Subject to that, Counsel’s duty to the client, which includes to advise the client as to his best interests (which may be to seek an adjournment) but ultimately to follow the client’s instructions (which may be to proceed) even if those instructions appear to Counsel to be unwise.

(B) Client Incapable

If, on the other hand, a client attends Court and appears to be so under the influence as to be temporarily incapable of understanding advice, giving the instructions, or following or taking any necessary part in the proceedings: -

(1) In rare cases, where the particular procedure has previously been explained to the client and his instructions taken at a time when he was capable, and the hearing concerned is a formality which follows its predicted course, it may be appropriate for Counsel to allow the hearing to proceed;

(2) But more often, Counsel will need to seek an adjournment, since it would be a breach of Counsel’s duties to the Court and to the client to allow the Court to proceed on the assumption that the client is capable when in fact he is not. In practice, this is likely to mean that Counsel has to make some disclosure of the client’s intoxication (in the unlikely event that it is not already apparent to the Court).

(3) Contemporaneous Notes

As ever in difficult situations, Counsel is strongly advised at every stage to make and keep a good contemporaneous note, and to ask any representative of his Instructing Solicitors to do the same.