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AN INFINITE CAPACITY FOR COURTING DISASTER – THE MENTAL CAPACITY ACT

By Jonathan Dingle, FRSA, MCIArb, Barrister Middle Temple

Your correspondent was in Kingston-upon-Thames, just opposite the police station, in the offices of a well known national firm of solicitors. His eye had turned slightly longingly to the menu boards of the pub opposite, advertising farm-smoked ham nestled in a joyous tuber, but his mind was focussed on the client. This veritable bastion of the Surrey Hills was rambling: something about fairies, and the spirit of her dear departed dog. Suddenly, her hitherto timid husband perked up. “Sorry” he interjected, “She has these ideas and loses the plot quite a lot. I never know if she is really with us.”

Praise be! For early lashings of Wiltshire’s finest with mashed potato were almost guaranteed. How so? Why was the conference about to end? It is, perhaps, surprising that lawyers on both sides of the bar, expert witnesses, and even some mental capacity assessors are not fully aware of the correct test or tests for mental capacity. Some think Dunhill is a product of Alfred’s Duke Street emporium and Mastermann-Lister the inventor of the Double-Cross system of counter espionage (which as also about smoke and mirrors). They may recognise the 2005 Act but not its capacity for confusion and disaster. Readers of this organ, however, will know the two-stage test is at the heart of good practice. The professional must ask: (1) Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.) (2) If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made? A lack of capacity will likely be established if the person cannot achieve any of these requirements: (a) Understand information about the decision to be made (b) Retain that information in their mind (c) Use or weigh-up the information as part of the decision process (d) Communicate their decision If a person lacks capacity in any of these areas, then this may represent a lack of capacity. Useful guidance is set out in the Mental Capacity Act 2005: Code of Practice1 which can be found in the footnote.

Section 2(1) of the Act states: “For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” This means that a person lacks capacity if: • they have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and • the impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.

An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general. Section 2(2) states that the impairment or disturbance does not have to be permanent. A person can lack capacity to make a decision at the time it needs to be made even if:

• the loss of capacity is partial • the loss of capacity is temporary • their capacity changes over time A person may also lack capacity to make a decision about one issue but not about others.

It is easy to make a mistake in this area, particularly given the five statutory principles, which are: 1. A person must be assumed to have capacity unless it is established that they lack capacity. 2. A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success. 3. A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision. 4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

The loss of capacity need not, in a legal case, be throughout the case – if there is a temporary loss then a Litigation Friend must be appointed. A failure to do so, or even to recognise the loss of capacity,

may invalidate a settlement. So held the Supreme Court in Dunhill (by her Litigation Friend, Paul Tasker) v Burgin [2014] UKSC 18 On 25 June 1999, the Claimant was crossing the A635 close to a roundabout, with her son, Mr Sam Tasker, and his girlfriend, Miss Carole Rogers. They are about five foot four, five foot nine, and five foot five inches tall respectively. The road was not a dual carriageway, but on the approach to the roundabout, level with a roughly triangular traffic island, the road widens into two lanes in order to enable two lines of traffic to approach the roundabout. The road bends to the left shortly before it approaches the roundabout. It is likely that the group was crossing from the kerb to that traffic island at a point where the kerbs are dropped to help pedestrians to cross. Mr Burgin, who was riding his motorbike, collided with the Claimant. She was emerging from between the first and second vehicles which were queuing in the nearside lane. Mr Tasker was able to yank Ms Rogers out of the way. There must have been at least four vehicles in the queue, as Mr Burgin’s two witnesses were in the third and fourth vehicles.

The Claimant suffered a serious closed head injury, and soft tissue injuries to her legs. She has no memory of the accident. The police investigated the accident, but Mr Burgin was not prosecuted. By the time it came before the Supreme Court it was accepted by the defendant that the claim was worth £800,000 (the claimant said it was worth much more). The claim as actually pleaded was limited to £50,000 and at the first day of a liability trial was compromised by the claimant and her counsel (assisted by a trainee solicitor) for £12,500 when a key witness did not attend without good reason. There was a consent order, but no one considered that the claimant lacked capacity. Subsequently, she took fresh advice and sought to set aside the Consent Order.

Given that capacity is “issue specific” an issue arose as to whether she did have capacity, when judged against the simple case originally pleaded, whereas she may not have had capacity in relation to the more complicated case she now presented. The court acknowledged it had to balance the need to protect individuals who lack capacity from making settlements which are unfavourable to them against the presumption of capacity; individuals should only be deprived of the right to make their own decisions to litigate in clear cases. The Court had to consider the public interest issue in upholding agreements to settle which everyone thought were valid when entered into. Whilst there was undoubtedly a need for finality in litigation, children and protected parties require and deserve legal protection, not only from themselves, but also from their legal advisers. Ms Dunhill lacked litigation capacity, and her settlement should have been approved by the court under CPR 21.10(1). The compromise was therefore set aside, and the case sent for litigation afresh. Dunhill case therefore decided that capacity must refer to the actual decisions which a claimant (pre-proceedings, as well as after a claim is started) must be capable of making and the actual instructions she should be giving in relation to that claim. An underlying principle is the protection of the “protected party” not only from the other party, but from her own legal advisers. It is no good that she had capacity at a mediation, for example, when she has lacked capacity at times during the preparation for that settlement day. It followed that after due words of solicitous caution, the delightful lady went to see one of her psychiatrists for an assessment with the conference adjourned. In due course, she returned, several weeks later, being found to be in possession of adequate understanding – but one cannot be too careful or in too great a hurry when it comes to litigation. Nor yet with ham: luncheon was outstanding and all the better for knowing the claim would not turn into a pig’s ear.

1 www.gov.uk/government/uploads/system/uploads/ attachment_data/file/497253/Mental-capacity-act-codeof-practice.pdf