Please read these notes before completing the Certificate

 

 

GUIDANCE NOTES

 

 

1.                 Where a person who is involved in legal proceedings lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings, their interests must be protected by the appointment of a ‘litigation friend’ who will conduct the proceedings on their behalf.  In some proceedings the litigation friend is known as a ‘next friend’ or ‘guardian ad litem’. The Official Solicitor is usually approached in cases where there is no other suitable person who is willing to act.  Evidence is required to establish whether the person lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings. A person who lacks capacity to conduct proceedings is referred to as the ‘protected party’ within the proceedings.

 

Capacity to conduct proceedings

 

2.                 The Mental Capacity Act 2005 (section 2 (1)) provides that a person lacks capacity if, at the time a decision needs to be made, he or she is unable to make or communicate the decision because of an ‘impairment of, or a disturbance in the functioning of, the mind or brain’ .

 

The Act contains a two-stage test of capacity which has diagnostic and functional elements:

 

                 1.     Is there an impairment of, or disturbance in the functioning of, the person’s mind or brain?

                 2.     If so, is the impairment or disturbance such that the person lacks the capacity to make  decisions in relation to the proceedings.

 

Please refer to the information set out in your instructions and any accompanying letter for details of the proceedings and relevant information about the circumstances of  the person

 

 

The assessment of capacity must be based on the person’s ability to conduct the proceedings and not on his/her ability to make decisions in general. It does not matter therefore if the lack of capacity is temporary, or the person retains the capacity to make other decisions, or if the person’s capacity fluctuates.

 

To have capacity to conduct the proceedings the person must have capacity to understand, absorb and retain information (including advice) relevant to the issues on which his consent or decisions are likely to be necessary in the course of the proceedings, sufficiently to enable him or her to make decisions based upon such information.  This includes the ability to weigh information (and advice) in the balance as part of the process of making decisions within the proceedings and the ability to communicate his decision (whether by talking, using sign language or any other means).

 

A lack of capacity cannot be established merely because of a person’s age or appearance or his condition or an aspect of his behaviour. Similarly a person is not be treated as being unable to make a decision merely because he or she has made an unwise decision.

 

Practitioners are required to have regard to the statutory principles set out in section 1 of the Mental Capacity Act 2005 and to the Code of Practice, in particular Chapters 2, 3 and 4, when assessing capacity.

 

The statutory principles provide that:

 

Section 1 …..

 

‘(2)     A person must be assumed to have capacity unless it is established that he lacks capacity.

 

(3)      A person is not be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

 

(4)      A person is not to be treated as unable to make a decision merely because he makes an unwise decision’

 

(5)      An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or make , in his best interests

 

(6)      Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action’.

 

3.                 The Code of Practice is available on line at www.publicguardian.gov.uk.

 

4.                 If it is your opinion that the person does have capacity to conduct the proceedings, there is no need for you to give grounds for that opinion.  However, if you are of the opinion that the person lacks capacity to conduct the proceedings, the Official Solicitor’s certificate requires you to state in paragraphs 2 and 3 the grounds for that opinion. 

 

 

5.                 It may assist you to know that particularly in cases of periodic remission, the Official Solicitor will ensure that the protected party’s condition is regularly reassessed for the purpose of the legal proceedings.  In an appropriate case the Official Solicitor will take immediate steps for his removal as guardian ad litem, next friend or litigation friend to enable the protected party to resume personal conduct of the proceedings.

 

6.                

This certificate relates only to the proceedings in which the protected party is currently involved.  A separate certificate may be required if any application is made to the Court of Protection.  Similarly, separate considerations apply to any question whether the person is subject to compulsory detention under the Mental Health Act 1983: in some cases the person concerned is liable to compulsory detention but may have capacity to conduct proceedings, and in many other cases the person concerned lacks capacity to conduct proceedings but is not liable to compulsory detention.