Court Of Protection Assess Applicant’s Capacity To Litigate

Capacity Assessments in the Court of Protection are typically mandatory to ensure the Protected Party lacks the capacity to make the decision in question, with the Court of Protection only having jurisdiction where the Protected Party lacks capacity.

The question of capacity is usually reserved for the Protected Party; however, in the recent case, the Court of Protection considered whether the applicant retained capacity to conduct the proceedings. This case previously resulted in the applicant receiving a sentence of imprisonment following her continued breach of the Court’s Transparency Order; further details can be found in our previous blog here.

The applicant now sought to appeal the committal proceedings. In making the appeal, the applicant sought to obtain legal advice, and it was her legal advisors who raised concerns with regard to the applicant’s capacity. The advisors sought permission to undertake a capacity assessment to confirm whether the applicant had the capacity to conduct proceedings.

A paper-based assessment was initially carried out, which concluded there was a possibility of a delusional order, which may impact the applicant’s capacity. This conclusion was made on the basis that the applicant had a persistent persecutory ideation against various professionals and institutions, even when evidence was presented contrary to those ideations. The Court therefore directed that the applicant’s capacity first be determined by way of a hearing before the substantive application at hand, being the appeal, is heard.

The applicant opposed the Court’s direction for her capacity to be determined on the basis that the concerns raised were false and refused to undergo any form of capacity assessment. The hearing was still listed; however, during which the applicant was able to challenge the evidence put forward by the Doctor responsible for assessing her capacity.

The starting point is for capacity to be presumed, and sufficient evidence is required to rebut that presumption. A person is deemed to lack capacity if, at the time a decision needs to be made, they are unable to do so due to an impairment or disturbance in the functioning of their mind or brain. A person is considered to be unable to make a decision if they cannot understand, retain, use, or weigh relevant information, or communicate their decision by any means. All reasonable attempts must be made to assist a person, and if they can understand the information with appropriate support, they are not considered to lack capacity.

The Court noted that the applicant had been involved in these complex proceedings for a number of years now as a litigant in person. In considering the persecutory ideation, the Court further noted that this was a theme that had been persistent throughout the proceedings. The evidence submitted by the expert was also challenged as it was unclear on the evidence relied upon by the expert, which was minimal, and during the hearing, his oral evidence was inconsistent. Accordingly, the Court was satisfied the applicant retained capacity as there was insufficient evidence to suggest the applicant was unable to make the decisions required, not least due to her strong and consistent beliefs.

Comment

This case demonstrates that the Court of Protection is also able to assess the opposing Party’s capacity during proceedings. This will require doubts to be raised by others involved in the proceedings, and providing those doubts are supported, the Court must consider the issue before progressing the proceedings.