An NHS Trust v P  EWCOP 27
Subject-matter and litigation capacity P's psychiatrist initially stated that P lacked subject matter capacity (whether to take HIV medication) yet had litigation capacity. (1) The judge: (a) disagreed with the proposition that if a person lacks capacity to conduct proceedings as a litigant in person she might, nevertheless, have capacity to instruct lawyers to represent her and that the latter capacity might constitute capacity to conduct the litigation in question; (b) thought it 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 would be as rare as a white leopard). (2) On the facts, P lacked both subject matter capacity and litigation capacity.
The WLR Daily case summaries
Court of Protection
An NHS Trust v P
2021 April 28; 30
Mental disorder— Incapable person— Capacity— Expert concluding adult lacking capacity to consent to medical treatment but having capacity to conduct litigation of resulting proceedings— Expert opinion amended and Official Solicitor appointed— Whether adult incapable of acting as litigant in person having capacity to appoint legal representation to conduct litigation— Whether adult having litigation capacity P, a 60-year-old woman diagnosed with diabetes, paranoid schizophrenia and HIV, continued to refuse her essential antiretroviral medication as a result of fixed delusional beliefs and ongoing auditory command hallucinations. The treating NHS trust sought orders and declarations that she lacked capacity to decide whether to take her HIV medication and that it was in her best interests to do so. The initial expert assessment concluded, however, that as P’s delusions and hallucinations were “encapsulated” and related solely to her experience with her medication she retained capacity in other areas including the ability to conduct litigation and an Official Solicitor was not to be appointed on her behalf. Upon further review the determination of whether P had litigation capacity was brought before the court.
On the issue of litigation capacity—
Held, determination on capacity made. (1) The obiter comments found in the authorities suggesting that where a person lacked capacity to conduct proceedings as a litigant in person they might, nevertheless, have capacity to instruct lawyers to represent them, and that such capacity might constitute capacity to conduct the litigation in question, were wrong. The conduct of proceedings was a dynamic transactional exercise requiring continuous, shifting, reactive value judgments and strategic forensic decisions where the litigant, even if they were able to appoint the best representation in the business, had to be mentally equipped not only to be able to follow what was going on, but also to be able figuratively to tug counsel’s gown and to pass instructions and relevant information. The litigant therefore needed the same capacity to conduct litigation whether they were represented or not. (paras 30–31).
Dicta of MacDonald J in TB v KB (Capacity to Conduct Proceedings)  COPLR 149, para 25, Ct of Protection doubted.
(2) Although the earlier authorities made clear that cases where a person had litigation capacity whilst lacking subject matter capacity were likely to be rare, it was necessary to go further and, while acknowledging that it was virtually impossible to conceive of circumstances where someone lacked capacity to make a decision about medical treatment, but yet had the capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter. It was completely illogical to say that a person was incapable of making a decision about medical treatment but was capable of making a decision about what to submit to the judge making a determination on that same issue. Accordingly, while differential cases of that kind were not impossible, they ought to be very rare. As this was not such a case P did not have, nor had she initially had, capacity to conduct the present litigation (paras 32–33, 39, 40).
Sheffield City Council v EB considered.
Jack Anderson (instructed by Bevan Brittan LLP) for the NHS trust.
Katie Gollop QC (instructed by the Official Solicitor) on behalf of the incapacitated adult.
Thomas Barnes, Solicitor