When two legal teams turn up in court to represent P: Disputed capacity to conduct proceedings

By Celia Kitzinger, 18 March 2024

“The first thing I need to decide,” says the judge, “is who is acting for Mrs P”.  

It turns out there’s a difficulty.  Two legal team have turned up in court, both purporting to represent the protected party.

Mrs P (who has a dementia diagnosis) considers that she has capacity to conduct proceedings. She’s  instructed a solicitor and there’s a barrister (Matthew Wyard) who plans to  represent her in court today.

But at an earlier hearing before a different judge (DJ Russell), it was declared that there was reason to believe that Mrs P lacks capacity to conduct proceedings. The Official Solicitor has accepted the invitation to act as a litigation friend for Mrs P, and Yogi Amin is in court to act on her behalf. 

The case (COP 14187074) was heard remotely before HHJ Beckley, sitting at First Avenue House on 17^thJanuary 2024.

The applicant local authority (represented by Oliver Lewis) has applied to court to establish whether or not there has been coercive control exerted over Mrs P by her daughter and two other family members (the daughter’s ex-husband and current partner).  In the interim, they want the Lasting Powers of Attorney (held by the daughter) to be suspended, and all contact between Mrs P and these three family members to be supervised. 

Mrs P– an elegantly dressed woman in her late 70s – was present in court throughout,  as was her daughter (a litigant in person), and the daughter’s ex-husband and current partner.

Mrs P has prepared a witness statement, with the help of a firm of solicitors, which says that she does not lack capacity, that her daughter and her daughter’s partner “have done everything possible to help me in my old age” and that she wants her daughter to continue to act as her attorney.  She disputes claims of coercive control and says an assault her daughter is said to have made on her is a “false allegation”.  

The judge said he proposed to hear first from Yogi Amin “as to why I should continue to invite the Official Solicitor to act on Mrs P’s behalf” and then hear from Matthew Wyard “on why he should be able to act on the direct instruction of Mrs P”. 

“Does anyone object to that?”, the judge asked.  “No?  I’m not seeing any looks of horror”. 

Proposed representative for Mrs P via the Official Solicitor (Yogi Amin)

Yogi Amin outlined the process that had led to the involvement of the Official Solicitor.  

There had been two separate sets of reports as to Mrs P’s capacity: one commissioned by the local authority and carried out by social workers;  and the other commissioned by Mrs P’s daughter and carried out by the treating psychiatrist, Professor F.   Only the report commissioned by the daughter expressly purported to assess Mrs P’s “legal capacity”.

Mr Amin raised concerns about the way the latter report came about, and what information was made available to Professor F when determining the question of Mrs P’s capacity.  He expressed concern that Professor F’s assessments were carried out without the permission of the court or the agreement of the parties.  

The Official Solicitor’s view is that interim orders should be made under s.48 to record that there is reason to believe that Mrs P may lack capacity to make decisions on all relevant issues before the court, including litigation capacity.  This would mean that the Official Solicitor would then act for her in court as her litigation friend.

Proposed counsel for Mrs P with direct instruction (Matthew Wyard)

Mr Wyard pointed out that capacity must be presumed. The local authority, he said, “has not provided any evidence to rebut that presumption whatsoever”. 

He pointed to four capacity assessments in the court bundle, none of which relates to litigation.  He said that the social worker responsible for carrying out the capacity assessments “relatively junior”.  The local authority’s position “appears to be that because they’ve assessed Mrs P as lacking capacity in other domains, it follows that she must lack litigation capacity.  But the tests for litigation capacity and other types of capacity are not synonymous, and litigation capacity is a separate matter”.  

The capacity report commissioned by the daughter is by a Consultant Psychiatrist of 21 years standing who is recognised under the Mental Health Act 1983.  He found Mrs P to have capacity in all subject matter domains and also found that she had litigation capacity.

The  instructing solicitor, Mr Fielding of Fosters Solicitors, had also assessed Mrs P as having litigation capacity.

Local authority (Oliver Lewis)

The position of the local authority, said Oliver Lewis, was that they wanted to “protect Mrs P and uphold her autonomy and health and safety”.  They were not motivated by a wish to take over control of her life. This was an issue because the assessor appointed by the daughter had concluded that Mrs P had “legal capacity” based on the following analysis:

Legal Capacity

We talked about the role of the solicitor, and she said if she had to have a solicitor, she would accept this. She just wants to be given a chance to present her side of the situation with regards to care. She does not want to move out of her home, and she does not feel her family should be removed from her.

We talked about the fact that there is an application for the state to take over control of her life and she did not want this, and she was happy with the current arrangement.  There appeared to be no fear or coercion that I have been able to elicit in her. (quoted from Professor F’s report in the position statement from the local authority)

Oliver Lewis saw this as mischaracterising the application of the local authority.  He argued that the appointment of the Official Solicitor was “a protective measure” in the context of “very strong evidence spanning three years of coercion and control primarily by her daughter”.  

Mrs P (who lives in her own home with live-in care, separately from her daughter) has said she sometimes feels scared and that her daughter is a “bully”.  A social worker has documented various distressing instances including the daughter… 

• denying her mother prescribed pain relief
• shouting at her mother 
• refusing to leave her mother’s home when asked
• Installing a camera system in her mother’s home against her wishes (now removed by police)
• threatening to put her mother in a care home and have her dog put down
• throwing food over her mother. A carer took a photograph of Mrs P immediately after this incident, the police were called and arrested the daughter, bailing her on condition that she does not contact her mother by any means. (This bail condition has now expired.)

It was shortly after the (alleged) food-throwing incident (in late September 2023),  that the local authority made an application to revoke the Lasting Powers of Attorney held by the daughter (both Health and Welfare, and Property and Finance) and also to ask the court to consider the question of contact between Mrs P and the other two family members. 

The daughter’s partner and ex-husband have since visited Mrs P and allegedly pressured Mrs P to get rid of her care team, and to tell the police she wants her daughter to come back.  According to the local authority, there is  “a coordinated campaign by the three family members to undermine the carers, and persuade Mrs P to forget or discount the emotional and physical abuse that she has suffered at the hands of [her daughter].”

The local authority is concerned that the assessor appointed by the daughter “doesn’t seem to have considered what this case is actually about…. There no evidence that he discussed the actual substance of the hearing with Mrs P at all”.  Moreover, there’s lots of evidence that what Mrs P says to medical professionals and to the police when she’s on her own with them, is quite different to what she says when her daughter is present.  The position statement from Oliver Lewis documents a string of comments from Mrs P such as: “I just want my daughter to stay away from the house”; “I don’t want her coming round screaming and shouting, but I do miss her. The trouble with [Daughter] is she has no patience with people who are not 100%” and “If [the live-in carer] leaves, [Daughter] will come here again and bully me”. 

The local authority considers that the capacity assessment arranged by the daughter, and the subsequent appointment of a legal team for Mrs P independently of the appointment of the Official Solicitor, are “examples of [the daughter] coercively controlling and manipulating her mother”. The local authority disputes the finding of “legal capacity”. They say that where there are well-documented examples of coercive control and where P has a diagnosis of dementia, there is sufficient evidence to give the court reason to believe on an interim basis that P lacks capacity in all the disputed domains.  

Daughter

The daughter said she believes “100% that Mum has capacity”.  She explained that her mother had been very ill a few years ago (“she had multiple organ failure and nearly died”) and that the dementia diagnosis had been made in that context when she was “very frail”. Since then, her levels of cognition have improved.  

She said, “Obviously I love her very much, and I believe in her”. 

Mrs P

After hearing from the other parties, the judge turned to Mrs P in person. 

Judge to Mrs P:  Being in a hearing with people you’ve not met is very difficult. There’s two very different accounts being put forward to me, which I’ll have to decide between.  [The local authority] have given me two witness statements prepared by your social worker, plus comments made by medical staff when you were in hospital, and from the police force, and from your live-in carer.  And if those statements are right, you’ve been subject to very bad behaviour on the part of your family.

Mrs P: No!

Judge:  On the other hand, Mrs P, I’m told you have capacity to make decisions, that the Alzheimer’s diagnosis from just over two years ago – that thankfully your mental ability has improved. You have minor cognitive difficulties but can decide where you live, what care you receive, who you have contact with and that you have capacity to appoint people as Power of Attorney and tell solicitors how you want your case to be put. 

Mrs P:  I do have capacity to make up my own mind. I live in my own home. My daughter helps.  She doesn’t control me. If I ask her opinion about anything it’s between mother and daughter. I don’t know what else to say to you.  She’s been very good to me. I go to church and am very positive in my outlook.

The judge then said he thought there was reason to believe that Mrs P lacks capacity to conduct the proceedings.

Mrs P: That makes me so angry, because I do have capacity.  What I listen to, I take in. And I can respond coherently to other people.

Judgment on capacity to conduct proceedings

Here’s what the judge said, as accurately as I could get it down at the time.

I’m going to set out how I’ve made the decision I’ve made…. What I’m being asked to decide at this stage is effectively whether I have reason to believe that Mrs P lacks capacity to litigate – to tell solicitors what they should be doing on her behalf in these proceedings.  

I remind myself of s.1 of the Mental Capacity Act 2005 – the most important part of the Mental Capacity Act, the principles I have to apply as a judge of this court.  (The judge read out the following text.)

Then I turn so s.48 of the Mental Capacity Act 2005. (The judge read out the following text.)

The test of me having “reason to believe” that P lacks capacity has been considered by more senior judges than me, and I need to follow what they say in relation to that.

Mr Justice Mostyn in An NHS Trust v P [2021] EWCOP 27 said, in a nutshell, that if someone lacks capacity to make decisions about a particular subject, for example where to live or what care to receive, then – Mostyn said – “it is virtually impossible to conceive of circumstances … [where they would have] capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter”. 

Mr Justice Hayden, the (then) Vice-President in Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6 says he doesn’t think Mostyn would want his words to be afforded as much weight as they have.  He says:

It is necessary to reiterate that the test remains that in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 1 WLR 1511, endorsed in Dunhill v Burgin [2014] UKSC 18; [2014] 1 WLR 933. The essence of those judgments is to confirm, unambiguously, that capacity to litigate is addressed by asking whether a party to proceedings is capable of instructing a legal advisor “with sufficient clarity to enable P to understand the problem and to advise her appropriately” and can “understand and make decisions based upon, or otherwise give effect to, such advice as she may receive”. It follows that the issue of litigation will always fall to be determined in the context of the particular proceedings…. (§24 Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6)

In this case, not unusually (as people have said) the assessment carried out on behalf of the local authority on Mrs P did concern subject matter – where she should live, what care she should receive, whether to revoke to LPAs, and contact – but it didn’t assess Mrs P in relation to her capacity to litigate.  It was on the basis of those assessments that DJ Russell found, on the basis of s.48, Mrs P also to lack capacity in respect of litigation.

Mr Lewis for the local authority says I shouldn’t overturn that decision.

I disagree, to the extent I think I should reconsider for three reasons – with no disrespect to DJ Russell.  First, I have now been provided with Professor F’s capacity assessment. Second, Mr Fielding of Fosters Solicitors, who is an experienced solicitor, considers, having spoken to Mrs P, that she has capacity to litigate. Third, I’ve heard from the parties in this hearing.  DJ Russell didn’t have the benefit of any of those things.

I have to walk a very fine line between two contesting accounts that have been put to me.  

On the one hand I have the account by Mrs N, Mrs P’s social worker, which sets out (I emphasise that I’ve not made any findings but which sets out) very bad behaviour that Mrs P has faced, and set out both in the witness statements and in the accounts given by Mrs P to her live-in carer and to hospital staff, that Mrs P at times has felt controlled by her daughter, and has suffered harm – serious harm – from her daughter.  I have seen the photograph exhibited in Mrs N’s witness statement of Mrs P covered in food and read the account given that food was poured over her by her daughter.  That is bound to be impactful on anyone making decisions such as the one I’m making now.  I bear in mind the point made by Mr Wyard about the social worker’s lack of experience, but I find her reports to have carefully considered what information needs to be understood, weighed and communicated in relation to each subject matter.

On the opposite side, if Mrs P has the capacity to make decisions, then I have no right at all to be making decisions on Mrs P’s behalf.  And I understand absolutely the concern – indeed the anger – Mrs P expressed to me about the fact that she has to sit here on a Wednesday morning with her life being discussed by various people she doesn’t know.  I have read the report by Professor F, which I have to say I don’t find very compelling.  It does not clearly and systematically go through the tests that s.2 and s.3 of the Mental Capacity Act require. I give more weight to the statement prepared by Mr Fielding, and a great deal of weight to Mrs P’s daughter and to Mrs P herself.

Having taken all those factors into account, and in particular that what Mrs P has said to me contrasts with what she has said to her social worker and to medical professionals on other occasions, I have come to the conclusion that I do have reason to believe that she lacks capacity to make decisions in relation to this litigation.

It is likely to be complex litigation.  There are allegations against her daughter that are denied. The fact that Mrs P’s own account has varied over time makes it more complex.  So, for the purposes of s.48 of the Mental Capacity Act 2005 I do think I have reason to believe that she lacks capacity to litigate, so the Official Solicitor should continue to act as her litigation friend. But what is absolutely clear is that the first step is to ensure that further capacity assessments are carried out by an independent expert.  Also, the cost of instructing that expert must be borne by the local authority as Mrs P isn’t getting legal aid, and it would be wrong that the daughter should contribute to the cost of that independent expert.”

Next steps

There was some concern about the appropriate way forward from here.  The local authority argued for a fact-finding hearing in advance of a capacity assessment – because if it were to be found as a “fact” that her daughter is exerting coercive control over Mrs P, that needs to be amongst the “relevant information” that Mrs P would need to be able to understand, retain and weigh in making (capacitous) decisions about contact, care and residence.  

Until the “factual” basis (or otherwise) of this allegation is established, capacity assessment is challenging because, said Oliver Lewis, “the capacity assessor will have to put to Mrs P two different accounts, and would have to conclude speculatively e.g. ‘if there was coercive control, then Mrs P has capacity to decide on X, but if there was no coercive control she lacks capacity’”. 

The judge did not accept this argument.  “The converse is a fact-finding hearing with Mrs P represented by the Official Solicitor and evidence given by [the social worker], and then if after that there were to be a finding that Mrs P has capacity to litigate, she would then have wanted a very different position put on her behalf.  She’s telling me today that she doesn’t accept the allegations against her family members. It can’t be right to proceed in that way”. 

The judge ordered a one-day capacity hearing as swiftly as possible – which turns out to be 25^th April 2024.  This will address Mrs P’s capacity to make decisions across all the relevant domains. 

The judge asked Mrs P’s daughter, and the two male family members, to give an undertaking that they would only have contact with Mrs P with a carer present.  After some discussion about which carer (not the one who’s made allegations of abuse), they reluctantly agreed to this. The daughter said:  “I am scared to death – I’ve never harmed a hair on my mum’s body. It’s wicked. It’s brutal”.   They were also asked to undertake not to use threatening or intimidating words or behaviour with the carer or with Mrs P. 

Daughter: (sounding shocked) I never have!

Judge:  Let me say very clearly that I’ve made no findings of fact, so I’ve not decided whether what is said in those statements is true or completely false.  Your response is to tell me you never have, and never would.  It would be helpful if you told be though that you wouldn’t.

Daughter:  I would not, and I wouldn’t dream of it. […]. Mum’s human rights have been taken away.  Is there anything we can do to protect Mum’s human rights?  She’s [late 70s] – there isn’t that much time left. Why is this happening to our family?

Judge:  I am being asked to decide whether Mrs P is being treated terribly badly by her family or whether – as your position is – that you are a loving family.

The daughter was also asked to agree not to use the LPA for Health and Welfare pending the next hearing about capacity in about twelve-weeks’ time.  She reluctantly acceded to this, but was concerned about what would happen “if Mum became ill, delirious between now and then” (the judge said a collective decision would be made and if people couldn’t agree it would come back to court).  She was worried about the length of time this was all taking, given that she has a report in hand from a “respected geriatric expert”. 

Mrs P intervened at this point.

Mrs P:  I just need to say something.  I’ve known Professor F for three years.  He’s looked after me.  I’m sure he knows about my mind and how things are going.  I need someone to be on my side in this. 

Daughter: Well done Mum!  (All three family members clap their hands.)

Judge:  (to family) This is not a theatre performance.  Applauding is not appropriate and is disrespectful to this court.  (to Mrs P).  I’m sure he’s doing a good job as your clinician, but I have two different views about your capacity.  Although I’ve made a decision contrary to what you’ve told me you want, that doesn’t mean I discount what you say.  But what you’ve said to me today is very different from what you’ve said to your social worker and care providers in the past.

Mrs P: Right, but that’s been when I’ve been poorly.  And health care workers misinterpret what I say.

After confirming the date for the next hearing, the judge ended with a final exchange with Mrs P.

Judge: Thank you for talking to me and making your views clear.  I hope you do recognise why I’ve made the decisions I’ve made today – even though you’re not happy with them.

Mrs P: I will mull it all over. Thank you very much indeed.

Reflections 

So, for now, Mrs P, who believes she has the capacity to instruct a lawyer, has been denied the right to do so – despite the fact that the solicitor she instructed also believes she has capacity to do so, as does her daughter, and as was found to be the case in a capacity assessment recently conducted by a consultant psychiatrist.

Instead, the legal team appointed to represent her best interests is instructed by the Official Solicitor. It will take account of her “wishes and feelings” but no more than that – and can act lawfully advance a position that runs directly counter to her wishes and feelings.

On the face of it, this would seem to be in violation of Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) which – somewhat controversially –  guarantees for disabled people “equal recognition before the law” and affirms that states “shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”.

Mrs P is being treated (at least on an interim basis) as lacking capacity to instruct a lawyer on the grounds that her social workers have found her to lack capacity to make decisions about where to live and receive care, and what contact to have with others, which in turn has led a district judge to decide that there is reason to believe she lacks capacity to litigate in relation to these matters.  HHJ Beckley has looked at the question again in the light of new information, but arrived at the same decision – most especially in view of the complex nature of the proceedings involving disputed allegations of coercive control and abuse, and Mrs P’s own apparently inconsistent communications about her daughter’s behaviour.  

One of the problems for Mrs P, according to her social workers, is that she is unable to remember instances of abuse.  If reminded of them she says she does not think her daughter would behave like that now – notwithstanding that the last instance of abuse when she said that was only 10 days earlier.

Perhaps more could be done to support Mrs P in exercising her legal capacity (Article 12(3) CRPD) – maybe talking with a solicitor with the support of an independent advocate to help her to remember the difficulties she’s experienced with her daughter in the past, and to think through the implications for the future and what safeguards she might like to put in place.  Perhaps this will be done between now and the next hearing.  Perhaps at the next hearing she will be found to have the capacity to instruct her own legal team.

The problem here is that a vulnerable older woman with dementia (or, at least, cognitive deficits) is potentially being controlled and manipulated by family members. In finding her (provisionally at least) to lack capacity to make her own decisions about contact and about litigation, the court is seeking to protect her from what she now says she wants, which seems to be unrestricted contact with the very people accused of abusing her.

Of course, there are people who apparently have capacity to make their own decisions who repeatedly return to people who abuse them – sometimes hoping the person will change, sometimes believing that, despite the abuse, the benefits of the ongoing relationship outweigh the costs.  A finding of “lack of capacity” protects Mrs P from the right to make that kind of unwise choice.

In fact, the local authority has made clear that even if Mrs P is found to have subject-matter capacity, they will continue to try to protect her from her family members. They will apply to do so under the “inherent jurisdiction” of the High Court.  In Re SA (2005) EWHC 2942 (Fam), Munby J held that, even if a person does not have an impairment of mind or brain, the inherent jurisdiction can be used in relation to an adult who is unable to protect themselves from harm because (for example) they are subject to coercion or undue influence and therefore disabled by another person from making a free choice. That decision affirmed the existence of the “great safety net” of the inherent jurisdiction (a term coined by Lord Donaldson in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1) in relation to all vulnerable adults

There is a delicate and challenging balance between protecting those at risk and respecting their autonomy, but it’s hard to believe that Mrs P’s autonomy is maximised, or her human rights as a disabled person are best protected,  by leaving her in the coercive control of her daughter (if that is factually the case).  If it isn’t, then of course there is serious interference with her right to make her own decisions and her right to family life.  

The problem at the moment is that the court simply doesn’t know.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

_{Note: As always, this blog post is based on contemporaneous touch-typed notes, but as we are not allowed to audio-record hearings, I doubt it is 100% verbatim. It’s as accurate as I could make it under the circumstances.}