Litigation Friends

Part of the debate – in Westminster Hall at 4:12 pm on 21 March 2012.

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Photo of Jonathan Djanogly Jonathan Djanogly The Parliamentary Under-Secretary of State for Justice 4:12, 21 March 2012

I congratulate my hon. Friend John Hemming on securing this Adjournment debate today on a subject in which I know he has significant experience and interest. He mentioned a number of live cases, which he must appreciate I am restricted in discussing, but he also discussed a wide variety of interrelated and serious topics, which I shall do my best to address.

I acknowledge that the family courts and the Court of Protection deal with some of the most difficult questions affecting the lives of individuals and families, their rights and capacity to make decisions about their own future, as well as decisions about who is best able to take care of children and to provide them with a loving and caring home environment. The courts take such matters seriously, and rightly so. They are sensitive and personal matters and there is a difficult balance to be struck between respect for an individual’s privacy, in particular that of children and other vulnerable people, and promoting openness to support public confidence in the court system.

On litigation friends or guardianship, my hon. Friend has written to me on several occasions regarding the effectiveness of the Mental Capacity Act 2005—he has doubts about the effectiveness of the Act and how it is used. The Act is, however, widely supported by stakeholders for the empowerment it gives to individuals. He referred to an article by the Council of Europe Commissioner for Human Rights—I thank him for sending it to me before the debate—on persons with intellectual and psycho-social disabilities under guardianship being deprived of their legal capacity in several European countries. In the article, the commissioner calls on European Governments to review their legislation on legal capacity and urges recognition that supported decision-making alternatives should be developed for those who want assistance in making choices or communicating them to others.

As my hon. Friend is aware, the Mental Capacity Act provides a statutory framework to empower and protect people aged 16 and over who lack or might lack capacity to make certain decisions for themselves because of illness, a learning disability or mental health problems. Implemented in October 2007, the Act encompasses five main principles. First, there is a presumption of capacity—that all adults have the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise, and that capacity is presumed to be ongoing until there is evidence to the contrary. Secondly, it sets out the right of individuals to be supported to make their own decisions—that all reasonable help and support should be provided to help individuals to make their own decisions and, if necessary, to communicate those decisions, before it can be assumed that they have lost capacity. Thirdly, the Act provides that it should not be assumed that people lack capacity simply because their decisions might seem unwise or eccentric. Fourthly, if people lack capacity, anything done on their behalf must be done in their best interests, and the Act provides a checklist of factors that all decision makers must work though when deciding what is in the best interests of the incapacitated person. Finally, if people lack capacity, before a decision is made on their behalf, all alternatives must be considered and the option chosen should be the least restrictive of their basic rights and freedoms.

The Act is intended to assist and support people who might lack capacity and to discourage anyone who is involved in caring for someone who lacks capacity from being overly restrictive or controlling. It also aims to balance individuals’ right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves. The Act covers a wide range of decisions made or actions taken on behalf of people who might lack capacity to make specific decisions for themselves. Those decisions can be about day-to-day matters such as what to wear or what to buy when doing the weekly shopping, or about major life-changing events such as whether the person should move into a care home or undergo a major surgical operation. Certain decisions, specified in the Act, can never be made on behalf of a person who lacks capacity to make those specific decisions, either because they are so personal to the individual concerned, or because they are governed by other legislation. Such decisions concern family relationships, such as consenting to marriage or a civil partnership, consenting to have sexual relations, treatment under the Mental Heath Act or decisions on voting in an election or referendum.

The capacity to litigate is based on a common law test of capacity set down by the courts. My hon. Friend is aware of the Masterman-Lister case which makes it clear that the presumption is that all adults are competent to manage their property and affairs; it is for the person alleging incapacity to displace that presumption and to prove incapacity, not for an adult to prove his own capacity; and it is a fundamental right of a person to conduct proceedings. That presumption is not removed lightly. The assessment of litigation capacity is a matter for the court in the individual case to decide and—this is important—not for an expert giving evidence on capacity. I confirm to my hon. Friend that the legislation in force in England and Wales supports individuals to make their own decisions, as called for in the commissioner’s article.

My hon. Friend also questioned how litigation friends are appointed. The appointment of a litigation friend is governed by procedural court rules. The duty of a litigation friend is set out in rules and associated practice directions. The courts would not wish people to be deprived of their autonomy or prevented from conducting their own proceedings in the absence of cogent evidence that they lack the mental capacity to do so.

Annotations

Jean James
Posted on 22 Mar 2012 2:14 pm (Report this annotation)

An individual can be declared mentally incapacitated with the signature of only one SOCIAL WORKER, rather than what would be expected, i.e. two QUALIFIED psychiatrists, in such a serious matter. The current arrangment would be more suited to Soviet Russia.

Jean James
Posted on 22 Mar 2012 2:15 pm (Report this annotation)

An individual can be declared mentally incapacitated with the signature of only one SOCIAL WORKER, rather than what would be expected, i.e. two QUALIFIED psychiatrists, in such a serious matter. The current arrangment would be more suited to Soviet Russia.