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Capacity to instruct

You may have concerns from time to time about whether a client is fit to give instructions. The Law Society issued a Practice Note in December 1998 in relation to this. It makes it clear that it is a matter for the solicitor to determine whether a client is of unsound mind. It states that in marginal cases, a solicitor should obtain a medical certificate confirming mental health.

On the broader issues it states:-

  • that if a client is of unsound mind, he or she does not have the legal capacity to enter into a contractual relationship with a solicitor; and
  • if the solicitor determines that the client does not have capacity, he / she should take reasonable steps to ensure that the client’s interests are protected, which may involve a lessening of the professional duty of absolute confidentiality in the client’s own interest. 

There is a legal presumption of capacity and different levels of capacity are required in differing situations.

You don’t need to make a determination as to capacity at advice stage. Just make careful notes and write to the client afterwards to confirm the advice given.

At the legal aid stage, first have regard to the nature of the case, before determining what impact a client’s mental health difficulties may have -  if any - on the conduct of the proceedings and your ability to represent the client appropriately. This is particularly important in family law proceedings. In some cases, the client is an unwilling participant and the fact that they have mental health difficulties won’t affect the fact that there is a case before the Court and the judge is going to make a decision. For example in childcare cases, you should continue to represent the client even if they lack full capacity.

Approach

You should take the following approach:

  • have regard to the nature of the case in determining what impact a client’s mental health difficulties may have, if any, on the conduct of the proceedings and the solicitor’s ability to represent the client appropriately;
  • where the client’s capacity is an issue, it is a matter for you to determine if the client has capacity;
  • the determination may be an ongoing process, particularly if litigation is involved;
    any medical report is made at a point in time and the client’s situation may change from time to time;
  • You rely solely on a medical report and must form your own opinion on the issue of capacity;
  • if a medical report is being sought, you must advise the client of the relevant test of capacity and they must consent to the obtaining of the report;
  • advise the client of the consequences of a favourable or unfavourable report; and
  • maintain detailed records and attendance notes. 

In any case in which you have doubts about a client’s capacity to give instructions and the nature of the case is such that a lack of capacity may impact on the conduct of the case and your ability to represent the client appropriately, you may apply for authority to obtain a medical report to assist in determining whether or not the client has capacity. When applying, you should set out the likely consequences to the client if the report expresses the view that (a) the client has capacity and (b) the client does not have capacity.