Anthony Gold

Get in touch

020 7940 4060

  • People
  • Insights
  • What to Expect
  • Contact Us
Anthony Gold
  • Services
    • Housing And Property Disputes
      • Property Disputes
      • Leasehold Services
      • Services For Commercial Landlords, Tenants And Agents
      • Services For Residential Landlords And Agents
      • Housing And Tenancy Issues
      • Judicial Review
    • Injury And Medical Claims
      • Life Changing Injuries
      • Medical Claims
      • Personal Injury
      • Child Abuse
    • Family And Relationships
      • Starting Relationships
      • Ending Relationships
      • After Relationships End
      • Useful Contacts
      • Religious & Cultural Issues
      • Family Law FAQs
      • Family Dispute Resolution
      • Modern Families And Surrogacy Arrangements
    • Conveyancing, Property & Business Services
      • Business Agreements
      • Business Disagreements
      • Commercial Property
      • Commercial Property Disputes
      • Leasehold Services
      • Residential Property
    • Wills, Estates & Court Of Protection
      • Wills, Trusts And Estates
      • Claims Against Trusts And Estates
      • Capacity And Court Of Protection
    • Dispute Resolution & Employment Law
      • Personal Claims
      • Professional Negligence
      • Business Disagreements
      • Claims Against Trusts And Estates
      • Employment
    • People
    • Insights
    • What to Expect
    • Contact Us
  • Get in touch

    020 7940 4060

  • Housing and Property Disputes
  • Injury and Medical Claims
  • Family and Relationships
  • Conveyancing, Property & Business Services
  • Wills, Estates & Court of Protection
  • Dispute Resolution & Employment Law
  • Property disputes
  • Ownership disputes and shares in property
  • Challenging the decisions of councils and public bodies
  • Rights of way, boundaries, covenants and easements
  • Party wall disputes
  • Leasehold services
  • Lease extension
  • Collective enfranchisement
  • Service charge disputes
  • Repairs to leaseholds
  • Right to manage
  • Services for commercial landlords, tenants and agents
  • Breach of covenant
  • Forfeiture and recovery of possession
  • Dilapidations and failing to repair
  • Lease renewals
  • Services for residential landlords and agents
  • Regulatory issues
  • Repossession
  • Agents (including letting agreements)
  • Housing and tenancy issues
  • Repairs
  • Repossession and eviction
  • Rehousing and homelessness
  • Judicial review
  • Life changing injuries
  • Brain injury
  • Spinal cord injury
  • Amputation
  • Psychiatric injury
  • Fatal injuries and inquests
  • Medical claims
  • Surgical claims
  • Non-Surgical Claims
  • Birth injury
  • Child health and paediatrics
  • GP and primary care treatment
  • Private healthcare
  • Personal injury
  • Road traffic accidents
  • Accidents abroad
  • Accidents at work
  • Faulty products
  • Public liability and other accidents
  • Child abuse
  • Child abuse
  • Starting relationships
  • Pre nuptial agreements
  • Pre civil partnership and same sex relationship agreements
  • Cohabitation and living together agreements
  • Property ownership agreements
  • Ending relationships
  • Divorce and separation
  • Ending a civil partnership
  • Ending cohabitation
  • Agreeing child arrangements
  • Agreeing finance and assets
  • International arrangements
  • After relationships end
  • Abduction and leave to remove children
  • Changing and challenging parenting agreements
  • Changing and challenging financial agreements
  • Grandparents’ rights
  • Useful Contacts
  • Financial planners
  • Referral to Pension Actuaries and Pension on Divorce Experts (PODEs)
  • Tax Specialists
  • Financial Neutrals
  • Counselling
  • Conveyancing
  • Wills
  • Religious & cultural issues
  • Jewish family law
  • Islamic family law
  • Family Law FAQs
  • Children FAQs
  • Cohabitation Agreement FAQs
  • No-Fault Divorce and Separation FAQs
  • Financial Issues FAQs
  • Pre-Marital Contracts FAQs
  • Family Dispute Resolution
  • Roundtable Meetings
  • One Solicitor Solution
  • Mediation
  • Collaborative Practice
  • Arbitration
  • Second Opinions
  • Private FDR’s
  • Early Neutral Evaluation (‘ENE’)
  • Modern Families and Surrogacy Arrangements
  • Domestic Surrogacy
  • International Surrogacy
  • Business agreements
  • Business advice
  • Employment
  • Mergers and acquisitions
  • Supplier contracts
  • Business disagreements
  • Commercial property
  • Commercial Sale and Purchases
  • Commercial loans and mortgages
  • Property Investment: plot developers & plot buyers
  • Auction: sales and purchases
  • Commercial advice for landlords and tenants
  • Planning advice
  • Mortgage debentures and securities
  • Commercial property disputes
  • Breach of covenant
  • Dilapidations and failing to repair
  • Forfeiture and recovery of possession
  • Lease renewals
  • Leasehold services
  • Lease extension
  • Collective enfranchisement
  • Service charge disputes
  • Repairs to leaseholds
  • Right to manage
  • Residential property
  • Residential Sale and Purchases
  • Property Investment: plot developers & plot buyers
  • Remortgages
  • Auction: sales and purchases
  • Ownership matters and transfers
  • Wills, trusts and estates
  • Making a will
  • Applying for probate
  • Distributing the estate
  • Arranging lasting power of attorney
  • Trust advice
  • Tax planning and advice
  • Claims against trusts and estates
  • Contesting a will
  • Losses caused by trustees
  • Capacity and court of protection
  • Appointing a deputy
  • Removing a deputy
  • Arranging lasting power of attorney
  • Gifts and legacies
  • Managing assets under a deputyship
  • Care issues
  • Removing lasting and enduring power of attorney
  • Special educational needs
  • Capacity and court of protection
  • Personal claims
  • Debt recovery
  • Ownership disputes and shares in property
  • Civil and commercial mediation
  • Building disputes
  • Professional negligence
  • Professional Negligence
  • Property Fraud
  • Investment Fraud
  • Business disagreements
  • Building disputes
  • Civil and commercial mediation
  • Claims against directors
  • Contract disputes
  • Debt recovery
  • Directors personal liabilities
  • Employment
  • Professional negligence
  • Claims against trusts and estates
  • Contesting a will
  • Losses caused by trustees
  • Employment
  • Employment
  • Unfair or Wrongful Dismissal
  • Settlement Agreements
Anthony Gold > Blog > AN NHS Trust -and – P [2021] EWCOP 27: Litigation Capacity in the Court of Protection

Alexandra Knipe

Joint Head of Court of Protection

alexandra.knipe@anthonygold.co.uk

Share
  • May 13, 2021
  • Blog
  • By  Alexandra Knipe 
  • 0 comments

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.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Alexandra Knipe

Joint Head of Court of Protection

alexandra.knipe@anthonygold.co.uk

Get in touch

Call, email or use a contact form – whichever suits you. We’ll let you know the best person to help you get started.

Call or Email

020 7940 4060

mail@anthonygold.co.uk

No comments

Add your comment

We need your name and email address to make sure you’re a real person. We won’t share your email address with anyone else or send you spam. Please complete fields marked with *.

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

*

code

Related Services

  • Appointing a deputy

  • Arranging lasting power of attorney

  • Care issues

  • Gifts and legacies

  • Managing assets under a deputyship

  • Removing a deputy

  • Removing lasting and enduring power of attorney

About the author

  • Alexandra Knipe

Meet the team

  • Capacity and court of protection

You might also like...

  • (COP) Conversations Podcast: Mental Health Awareness

  • Court of Protection (COP) Conversations Podcast

  • Court of Protection (COP) Conversations Podcast: Investing for vulnerable clients

Contact Us

Request a Call Back

About Us

  • Accessibility
  • Compliance
  • Responsible Business
  • Equality & Diversity
  • History
  • Our Beliefs
  • List of LLP members

Careers

  • Trainee Solicitors
  • Vacancies

Social Media

  • Follow us on Twitter
  • Follow us on LinkedIn
  • Follow us on Instagram
  • View our YouTube channel

Online Payments

  • Payment page through Worldpay

Accredited by

Lexel Parctice
76000Award

Copyright © Anthony Gold Solicitors LLP. All rights reserved. Anthony Gold Solicitors LLP is a limited liability partnership registered in England and Wales with registered number OC433560 and is authorised and regulated by the by the Solicitors Regulation Authority with registration Number 810601