AN NHS Trust -and – P [2021] EWCOP 27: Litigation Capacity in the Court of Protection

The matter of AN NHS Trust is an interesting case that was initially brought to the attention of the Court of Protection with regards to a series of Welfare matters.

P was a 60 year old woman with a diagnosis of diabetes, paranoid schizophrenia and HIV.  P was refusing to take the antiretroviral medication prescribed to treat her HIV.  P suffered with auditory command hallucinations telling her not to take the medication and she had visual hallucinations which presented as snakes exiting the medication packet.

The Judge commented that “the difference between taking and not taking the medication is, usually, the difference between life and death”.  The matter was brought to the Court of Protection by the NHS Trust who ultimately sought a declaration that P should be made to ingest the HIV medication for her ultimate benefit and treatment.

When the matter was originally heard, P’s litigation capacity to engage in the proceeds brought by the NHS Trust, was not in dispute with an expert instructed to comment, specifically stating that “P has litigation capacity despite the fact that she does not have subject matter capacity”.

References to “subject matter capacity” caused further debate and it was submitted by the NHS that “while it will be rare for a person to have litigation capacity who does not have subject matter capacity, it is possible in principle and this is one of those rare cases”.  The matter proceeded before the Court on the basis that P did indeed have litigation capacity.

However, some 3 months later, P underwent a further capacity assessment which concluded that P lacked litigation capacity, and as such, the Official Solicitor was then notified of the proceedings.  The pervious experts reporting in the claim were asked to re-visit their earlier assessments and a dispute arose between the NHS Trust and the Official Solicitor as to litigation capacity.

P was described as not believing that the proceedings were about her; that she would not engage in the process or take the benefit of legal representation and  that she held a strong belief that she did not need to be involved in the Court process.   

Mr Justice Mostyn commented on the historic case law that deals specifically with subject matter capacity.  He concluded that in his opinion “it is virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decision about the manifold steps or stances needed to be addressed in litigation about that very same subject matter.  It seems to be to be completely illogical to say that someone is incapable of making a decision about medical treatment, but is capacity of making a decision about what to submit to a judge who is making that very determination”. 

In this case, the first important question to determine, was whether P’s had capacity to consent/refuse taking the antiretroviral medication.  On the facts of this case, P  lacked the capacity to refuse to take the HIV medication..  The second question was whether P had capacity to conduct the litigation.  Mr Justice Mostyn indicated that the answer to the first question, does not depend on the answer to the second question and that the Court would make its decision on the first question, irrespective of its decision on the second question.  Mr Justin Mostyn stated that “in a case such as this, if a party is assumed to have litigation capacity then she is taken to be capable of understanding, in a real sense, what is being proposed, and why.  She is taken to be able to weigh, again in a real sense, the advantage of the medication,  this understanding, and this weighting, will be the key drivers of the formation of the forensic decision that she will make in the litigation process.  Thus, she weighs all the information, both written and spoken, to formulate instructions to her lawyers in order to equip them to cross-examine and advocate generally on her behalf.  How P could be assessed of being capable of doing all this when her schizophrenia-induced belief is that God has spoken to her and told her not to take the mediation and where she believes that the medication is infected by snakes, is completely beyond me”. 

The Court of Protection concluded that the expert determination with regards to subject-matter incapacity should have led, almost inevitably, to an equivalent decision being made about P’s capacity to conduct litigation about that very subject matter.

The matter of litigation capacity in this case, should have been more widely explored once the subject-matter incapacity was raised; with proceedings stayed earlier, until a formal determination on litigation capacity, had been made.

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