Capacity to litigate: A young woman with anorexia nervosa

By Celia Kitzinger, 28 February 2023

The white leopard – also known as the ‘snow leopard’ – is rare and elusive. There are no more than six or seven thousand left in the wild and their numbers are declining due to habitat loss, poaching and the impact of climate change (WWF)

But what does a white leopard have to do with the Court of Protection?

The hearing

The  hearing before Mr Justice Moor (COP 14028041, 24 February 2023) concerned a young woman with severe and enduring Anorexia Nervosa.  We’re not allowed to report her name.  She’s asked to be referred to as “Patricia” in any publicity about this case. Reporting restrictions also prevent us from naming the Trusts involved in her care^[1].

This was a ‘directions’ hearing to deal with issues that need to be sorted out before the final hearing in a few months’ time.  

The court is being asked to decide whether Patricia has capacity to make her own decisions about treatment for her Anorexia Nervosa and –  if she doesn’t – then what treatment is in her best interests.

Patricia has also made a (purported) Advance Decision to refuse treatment (ss. 24-26 Mental Capacity Act 2005) specifying that she is refusing some treatments if she’s not able to make her own medical treatment decisions in the future.  The applicant NHS Trusts have asked for a declaration as to whether Patricia has (or had) capacity to make an advance refusal of treatment.  If she has capacity at the time that she made it, then it is binding on her doctors and she cannot lawfully be given the treatment she has refused.

But the key issue dealt with at the hearing I observed was not directly related to her views about medical treatment.  Instead, it was about whether or not Patricia has capacity to conduct this litigation, i.e., is she able to understand, retain and weigh information relevant to the court hearing, including deciding whether or not to appoint her own legal team, to take legal advice, to understand and make decisions based upon that advice, and to instruct lawyers during the final hearing.

In my experience of watching court hearings, it’s extremely rare for the person at the centre of a Court of Protection hearing to be deemed to have litigation capacity.  I’ve observed more than 400 hearings, and I’ve seen this only three or four times.

On the rare occasions when someone is found to have litigation capacity, it’s common for them to be found to have subject matter capacity too. For example, in Re SB [2013] EWCOP 1417 Holman J found that a woman with bipolar disorder had both litigation capacity and the capacity to make the subject matter decision (to terminate her pregnancy); and in Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6 Hayden J found that a woman with bulimia had both capacity to litigate and also  subject-matter capacity (to make her own medical decisions).

But it’s not automatic that people with litigation capacity also have subject matter capacity (or the other way around).   Capacity to conduct the legal proceedings and capacity for subject matter decision-making are two different things – and capacity assessors are required to assess them separately.   In principle it’s possible to have both litigation and subject-matter capacity, or neither, or just one and not the other.  

So, a person can have capacity to conduct the legal proceedings without having subject matter capacity, but in practice it’s rare.

As rare as a white leopard.

P’s capacity to conduct these proceedings

In deciding whether someone has capacity to conduct the proceedings (often referred to as “litigation capacity”), the court applies the same test as for any other capacity determination, i.e. s.2 and s.3 of the Mental Capacity Act [MCA] 2005.  Capacity should be presumed and a lack of capacity to litigate cannot be established merely by reference to a person’s age, or appearance, on the basis of their ‘condition’ (e.g. diagnosis).  

A person can be deemed to lack capacity to litigate only if it is established (on the balance of probabilities, and after attempts to help them have failed) that they are not able to understand, retain and weigh the relevant information for the particular application before the court (i.e it’s specific to this litigation in particular, not to litigation in the abstract – which is why ‘capacity to conduct these proceedings’ is a better formulation than the often-used ‘litigation capacity’).  This inability must be caused by “an impairment of, or a disturbance in the functioning of, the mind or brain” (2(1) MCA 2005).  A summary of the ‘relevant information’ that a person needs to be able to understand, retain and weigh (derived from previous case law) is helpfully provided by the 39 Essex Chambers Guidance Note “Relevant Information for Different Categories of Decisions” (September 2022)

In this case, the initial position of the treating Trust (represented by Sophia Roper KC) was that Patricia lacks capacity to conduct the proceedings.

But the Official Solicitor (represented by Michael Horne KC) accepted the findings of an expert assessment which found that Patricia does have capacity to conduct this litigation.  This means that Patricia should be free to appoint a legal team of her own choice (or to act as a litigant in person) and to conduct the litigation based on her own views, rather than having the Official Solicitor conduct them for her (based on their assessment of her ‘best interests’).  

In view of the expert opinion and the position taken by the Official Solicitor, the Trust said – pretty much right at the beginning of the hearing – that they “concede the issue of litigation capacity”^[2].  

So, there was nobody before the judge arguing that P lacks litigation capacity.  

The judge said “I am entirely satisfied that I should make a declaration that P has capacity to conduct litigation in this case in relation to her medical treatment.”  He added quickly, “That does not mean that she has capacity in relation to her medical treatment”.^[3]

I was surprised that he then added” “Mostyn made a judgment recently that this is as rare as a white leopard, but my experience is that this is not uncommon”. 

It may be, as Moor J says, that capacity to conduct the proceedings without capacity to make subject matter decisions is  “not uncommon”, but in that case the reality on the ground is not reflected in the published judgments (nor in my own observational experience). 

White leopards in case law

The judgment Moor J was referring to is Mostyn J’s decision in Re P [2021] EWCOP 27. 

Mostyn J disagreed with a psychiatrist, who reported that the P in that case (with paranoid schizophrenia) had ‘litigation capacity’ but lacked ‘subject matter capacity’ (whether or not to take antiretroviral medication to treat her HIV).  He said that “the correct decision by Dr Kemp [psychiatrist] about subject-matter incapacity should have led, almost inevitably, to an equivalent decision being made by her about P’s capacity to conduct litigation about that very subject matter…  I am not saying that differential decisions are impossible, but I am saying…. that such a case should be as rare as a white leopard.” (§39, Re P [2021] EWCOP 27, Mostyn J)

Mr Justice Mostyn outlined the capacity required in conducting proceedings.  It is, he said,  “a dynamic transactional exercise requiring continuous, shifting, reactive value judgments and strategic forensic decisions”.  The litigant “has to be mentally equipped not only to be able to follow what is going on, but also to be able figuratively to tug counsel’s gown and to pass her a stream of yellow post-it notes…”   – i.e. to be able to respond to what is happening in court by issuing ongoing instructions to her lawyer as events unfold (§31 Re P [2021] EWCOP 27, Mostyn J)

He concluded: 

…. it is virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter. It seems to me to be completely illogical to say that someone is incapable of making a decision about medical treatment, but is capable of making a decision about what to submit to a judge who is making that very determination (§33 Re P [2021] EWCOP 27, Mostyn J)

Mr Justice Hayden has robustly defended the ‘in principle’ potential for litigation capacity without subject matter capacity (in Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6). 

But there are very few cases (at least, cases I’ve been able to track down) in which P has been deemed to have capacity to litigate the proceedings but does not have capacity to make the subject-matter decision(s) before the court. 

Here are those I was able to locate – with help from people on Twitter who responded to my call for such cases (thank you Sophy Miles, Nuala Kane, and others who communicated with me privately):

• Re QR [2014] EWCOP 26 (DJ Batten) A 62-year-old woman with a diagnosis of paranoid schizophrenia has capacity to litigate – but not to decide where she should live 

• Re WA [2020] EWCOP 37 (Hayden J) A Palestinian refugee in dispute with the Home Office about his age has capacity to litigate but lacks capacity to decide whether or not he should be tube fed. (We blogged this case: “Hunger striking for his identity: Autonomy, capacity and justice”.)

• Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP40 (Roberts J) A 28-year-old woman with a diagnosis of a Severe and Enduring Eating Disorder has litigation capacity for the purposes of these proceedings but lacks capacity to decide whether or not she should be tube fed. (We blogged this case: (“A patient with severe and enduring anorexia nervosa”, and “’I have reached a clear conclusion that AB lacks capacity to decide whether or not she should be tube fed’”) 

And possibly this one:

• NHS Surrey Heartlands Integrated Care Board v JH [2023] EWCOP2 (Hayden J) A man in his 40s with “Autistic Spectrum Disorder” had capacity to conduct these proceedings (as a litigant in person).  The subject matter before the court was the validity of JH’s Advance Decision to Refuse Treatment [ADRT] made five years earlier.  The need to establish the validity of the ADRT implies (though I don’t think the judge explicitly declared) that JH now lacks capacity to refuse treatment.  (We blogged this case: “‘Vindicated!’ The experience of P in the Court of Protection”.) 

If there are other cases readers are aware of, please let me know.

This case will be back in court on 19th April 2023. It will be interesting to see if Patricia is found to have subject matter capacity – to decide about her own medical treatments for anorexia nervosa.  If she does not, then this case will join those above as another white leopard case.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 400 hearings since 1^st May 2023. She tweets @KitzingerCelia

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^[1] _{Reporting restrictions were dealt with appropriately both during and subsequent to the hearing.  The judge raised the matter of reporting restrictions and provided a brief summary of them within a few minutes of the start of the hearing.  He alerted observers (as far as I’m aware I was the only member of the public observing) to the fact that the Transparency Order protects the identity of the protected party, her family members, anyone with medical responsibility for Patricia, and (because of the risk of jigsaw identification) it also prohibits naming a country.  This verbal account accurately reflected the “subject matter of the Injunction” in the Transparency Order of 20 January 2023, which was sent to me by counsel for the Official Solicitor during the course of the hearing (with an alert that it may be amended). The judge added that it may also “possibly” cover the names of the three Trusts involved as well. Counsel for the applicant Trust made the case for adding their identities to the injunction (again, this was a concern with jigsaw identification) and the judge said he was minded to do so, but asked whether PA journalist, Brian Farmer (also present) and I, had anything to say on the matter.  We both did.  Brian’s view was that since he did not intend to write anything about this directions hearing, he was content with the order for now and would make submissions at the final hearing.  My view was that, since I was planning to write something about the directions hearing, I would like to name the applicant Trust (but not the other two).  The judge decided we should not be able to name any of the three Trusts, pending Patricia having the opportunity to appoint a lawyer to represent her own views on the matter.  Counsel for the applicant Trust then sent me the amended Transparency Order later the same day. In my view, this was all efficient and timely behaviour from everyone involved. Subsequent events which I cannot report here mean that I do have additional concerns about the current (and previous) Transparency Order, and Brian Farmer  and I will raise these concerns in advance of the next hearing.  I spell this out in detail since I tweeted, shortly after this hearing finished, about a different hearing, earlier in the same week, attended by two members of the public, expressing my concern about the way the reporting restrictions were managed in, and subsequent to, that hearing. That tweet was interpreted as referring to the hearing described in this blog post. I did not intend, in that tweet, to refer to this hearing. I apologise for creating a situation in which that misunderstanding occurred.}

^[2] _{We are not allowed to audio-record court hearings, so quotations in this blog post are based on contemporaneous touch-typed notes. They are as accurate as I could make them, but are unlikely to be 100% verbatim.}

^[3] _{The lawyer representing Patricia via the Official Solicitor up to that point then turned off his video and symbolically left the proceedings – reappearing only to make contributions to a discussion about  “transitional arrangements” for transferring information between the Official Solicitor and Patricia’s future legal team.}