Re SL [2017] EWCOP 5

Hearing to determine whether the Patient, who lacked capacity in areas such as where she should live, also lacked litigation capacity. 

The Patient has been diagnosed as having schizophrenia and obsessive compulsive disorder. She was moved to supported living accommodation where she remains after concerns were raised about self-neglect. The Patient wants to return home but the LA made an application to authorise her deprivation of liberty. The issue in this hearing was to determine whether or not the Patient had litigation capacity after an expert report, whilst concluding that she did not have capacity to decide where she lived or to make a decision about her care and treatment amongst others, did not definitively conclude that the Patient does not have capacity to conduct the proceedings.

The court was satisfied that the Patient understands in broad terms what the subject-matter of the litigation is but not satisfied that she is able to use and weigh the relevant information to make decisions and give instructions in relation to matters which are integral to the process of this litigation. On that basis, the court ruled that the Patient lacks capacity to conduct these proceedings.

Editor's note
This case highlights that the issue of capacity is multi-faceted. 

Everyone must always remember that the issue of capacity is also issue specific. Reports which say P lacks capacity are not only unhelpful but misleading as it requires an analysis of what precisely it is said that P lacks capacity to do. The issue of P being able to retain information even for short periods and weigh it is too often overlooked, whether it is in the context of P suffering a mental disorder as defined under MHA or for example due to cognitive impairment such as dementia.

Read the full text of the judgment on Bailii