The Singapore Law Gazette

The Client’s Mental Capacity to Litigate – A Few Pointers on Practice

In recent times, an increasingly common issue for advocates and solicitors is the issue of whether their clients have the capacity to commence and or continue litigation proceedings. This issue poses both practical and ethical complications for advocates and solicitors. This article seeks to briefly explain the law on the capacity to litigate and offers some practical tips and advice as well.

1. One lazy afternoon, a prospective client comes to you looking for legal advice. The client is accompanied by his son. The prospective client claims that he wants to commence proceedings against one of his children. The son has been giving you his instructions, but you could not help but notice that he forgets key details of events. He does not appear to understand why he is even at your office. What should you do?
2. The question of whether a client has mental capacity to litigate is not often canvassed in the authorities but is an important topic to consider. For starters, if a person does not have mental capacity to commence or continue litigation, it is arguable that the proceedings that he commences is arguably a nullity.¹SGB Starkstrom Pte Ltd v. Commissioner for Labour (2016) 3 SLR 598 See SGB Starkstrom Pte Ltd v Commissioner for Labour [2016] 3 SLR 598. Furthermore, a failure to ensure or take reasonable steps to ensure that someone has the necessary mental capacity to litigate could result in disciplinary proceedings being commenced against a solicitor under section 83(2)(h) of the Legal Profession Act.²See Law Society of Singapore v. Yeo Khirn Hai Alvin and another matter (2020) 4 SLR 858 (HC)
3. A good starting point for any legal analysis is the statutory test for mental capacity as provided for under the Mental Capacity Act 2008. Under this test, there are two components:

1. 1. The person alleged to lack mental capacity (P) is unable to make decisions for himself in relation to a matter at the material time. This is known as the Functional Component;
   2. The inability to make the decision is due to an impairment of, or a disturbance in the functioning of P’s mind and brain. This is known as the Clinical Component. Medical expert evidence would be required on this front.

4. The key issue really turns on the Functional Component. Even if a person suffers from a mental condition, it does not necessarily follow that he or she lacks mental capacity. One must further show that P is unable to make decisions in relation to the specific matter.
5. Under the Functional Component, P is unable to make decisions if P is unable to (a) understand information relevant to the decision; (b) retain that information; (c) use or weigh that information as part of the process in making the decision; or (d) communicate his decision.
6. At this point, the general principles seem trite. However, capacity as contemplated under the MCA is an issue-specific question. So what do we mean by a person has capacity to litigate, and how do we determine if the said person has capacity?
7. Some guidance can be found in the English Court of Appeal’s decision in Masterman-Lister v Brutton & Co [2003] 1 WLR 1511 where Chadwick LJ at [75] explained that:
   

   “… the test to be applied … is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings …”³Masterman-Lister v Brutton & Co (2003) 1 WLR 1511 at (75) (Chadwick LJ)

8. It should be noted that on the outset, Chadwick LJ’s decision was given before the enactment of the Mental Capacity Act in England; his decision remains helpful in explaining the correct standard applicable for assessing a person’s capacity to litigate under section 5(1) of MCA 2008⁴See also Mr Justice Falk’s decision in Hinduja v. Hinduja and others (2020) 4 WLR 93 at (32) – that P has the requisite capacity if he or she is capable of understanding with the assistance of proper explanation from legal advisers the issues on which his or her consent or decision is likely to be necessary in the course of the proceedings.⁵See Mr Justice Mostyn’s decision in Richardson-Ruhan v. Ruhan (2021) EWFC 6 at (24) and (29)
9. It is also observed in the English courts that the test for capacity does not differ simply because a person is represented by solicitors or not represented. As Mostyn J observed in An NHS Trust v P [2021] 4 WLR 69 at [31], litigation being a dynamic transactional exercise requires continuous, shifting, reactive value judgments and strategic forensic decisions; therefore even if a litigant instructs the best counsel, he needs to have the capacity to follow the proceedings.⁶Or as Mr Justice Mostyn in An NHS Trust v P (2021) 4 WLR 69 at (31) described, the litigant must “be able figuratively to tug counsel’s gown and to pass her a stream of yellow post-it notes” . However, such an explanation does appear to put the standard far higher than what the authorities have suggested thus far.
10. Therefore, if the litigant’s ability to offer testimony on the witness stand is compromised, it may be seen as reflective of a person not having mental capacity to litigate. This can be seen from the facts of the Singapore High Court’s decision in BUV v BUU and another [2020] 3 SLR 1041, where Aedit Abdullah J noted “grave doubts were raised” over the litigant’s mental capacity as she was not only unable to recall the important details, but she was also not even able to recall what she had just testified during her cross-examination.⁷BUV v BUU and another (2020) 3 SLR 1041 at (40)-(46) The litigant’s responses showed that “she was unable to fully comprehend the nature of the present proceedings and the questions asked of her”.⁸BUV v BUU and another (2020) 3 SLR 1041 at (47)
11. It is clear from a consideration on the multiple authorities concerning whether a litigant has capacity to act, that the focus is squarely on whether the litigant is capable of understanding the advice which a solicitor has given. The legal position appears to be straightforward but how does it translate in practice? In the next section, we consider some difficulties that solicitors will face when it appears prima facie questionable that the client has the capacity to commence and/or continue proceedings.

When the Client’s Mental Capacity is Doubtful

12. While capacity as contemplated under the MCA is an issue-specific question, it would be impossible to categorise all the circumstances in which a person may become involved in proceedings before a civil court or tribunal.
13. In practice, one may have doubts over a client’s mental capacity for many reasons:

1. 1. What the solicitor was told in advance (either by medical professionals or P’s family members and/or caregivers);
   2. The client’s residential circumstances (he or she stays in a nursing home or residential home);
   3. The solicitor’s own observations of how P looks and behaves;
   4. What P has informed the solicitor (for example a widow insisting that her husband remains alive and/or proposes a gift to a person, that appears irrational);
   5. The outcome of the client’s decisions (e.g. to do things that are legally or factually impossible);
   6. A sudden or dramatic change in the client’s behaviour, in the absence of a known medical diagnosis.

14. Each solicitor may have his or her own time-tested and risk-weighted methods of assessing mental capacity. However, there are still some important points in practice which we intend to raise.
15. First, it pays to reiterate the need to be sensitive to the risk of being misled by appearances or outward manifestations when considering the client’s capacity. Some observations are worth noting here:

1. 1. There is a difference between a person’s ability to understand, and whether he has the capacity to do so;
   2. Therefore, a person may appear to have capacity but he remains unable to understand something due to the subject matter’s complexity;
   3. A finding of mental capacity cannot be justified by a person’s physical appearance or condition. The absence of certain physical characteristics may even disguise underlying issues affecting the person’s mental health and/or learning disabilities;
   4. Just because a person observes certain social conventions and norms does not mean he does not have incapacity. For example, a person suffering from dementia could outwardly display a routine pattern of learnt behaviour.

16. Second, a key but often overlooked point is to, whenever possible, optimise the conditions for assessing capacity (see para 2 above). Apart from the guidance provided for in the Code of Practice (3^rd Edition) issued by the Office of the Public Guardian (OPG), we have some further suggestions:

1. 1. Minimise anxiety or stress of the client by making the person feel at ease. This can be by way of the choice of location where the client feels the most comfortable and the time of the day when the client is the most alert.
   2. If there are any communication or language problems, consult the family members on the best form of communication or consider consulting a speech and language therapist.
   3. Be aware of any ethnic, cultural or religious values which may have a bearing on the person’s way of thinking, behaviour or communication.
   4. Consider whether it is appropriate to have a friend or family member present to help reduce anxiety. However, this must be balanced by the awareness that such presence may on certain occasions be considered intrusive, or there is good reason to believe that person’s presence may place undue influence on the client.Identify and explain the salient relevant information relating to the proceedings in a way which the client understands. However, this must be balanced by not giving excessive details.

17. Third, it bears reminding that the assessment of a capacity to litigate is issue-specific and time-specific. From Masterman-Lister v Brutton & Co (see para 7), it is also clear that the question of capacity to litigate inevitably follows closely from the question of the management of one’s own affairs, but it requires separate consideration because it does operate in a separate and more restricted time frame, but a time frame quite different to the decision to make a will or to grant a power of attorney.
18. Therefore, the regime and structure of assessing mental capacity as established in the MCA should be applied to each and every individual decision which falls for consideration. The evaluation process remains the same but the factors necessarily differ based on the specific factual context. Removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite on.
19. When acting in a professional capacity, lawyers must have regard to our own professional code of conduct. We must be mindful that at the end of the day, every assessment of capacity is simply an opinion at a particular snapshot in time. This is distinct from the role of the Court which makes a final determination of a person’s functional ability after considering all the evidence.
20. Fourth, the capacity to litigate may possibly involve the capacity to understand a large variety of issues that arise between deciding to issue the claim up to the point of judgement. As such, it is essential to make a careful assessment of person’s capacity to conduct the particular proceedings with which they are involved.
21. The MCA assumes every person has mental capacity unless established otherwise. While the MCA contemplates that someone with fluctuating capacity has the ability to still make decisions, litigation often requires a person to retain relevant information for a significantly longer period of time than other types of decision-making. Ability to participate in litigation will likely involve making complex decisions which require the processing of a good amount of detailed information and self-awareness.
22. To confirm whether someone is able to understand the relevant information, the solicitor will need to check if the client is able to feedback their understanding of the information. The ability to feedback lends a factual, though not completely determinative, measure of a person’s understanding. Generally, the client should be able to give a general description or explanation of what they understand. Most importantly, as litigation involves a variety of issues, they must be able to see the various parts of an argument and how they relate to one another.
23. Fifth, as the runway of litigation can be long and uneven, it is important as a protective measure, though not necessarily intuitive, to make enquiries on whether the prospective client has made a Lasting Power of Attorney (LPA) or intends to make one. In the absence of an LPA, the practitioner should refer the prospective client to another party to get the LPA put in place, mindful that one of the powers granted to donee(s) under the basic Singapore LPA is:
    

    “… to represent (the donor) in proceedings in any court or tribunal, any negotiation or mediation, engage a lawyer for matters in relation to this LPA, and accept service or court papers or any other notice or document”.

    This is the most practical step that any solicitor can take.

24. If making an LPA is not possible due to the client’s existing lack of mental capacity or fluctuating capacity, then section 23(1)(p) of MCA 2008 allows a prospective deputy to be given powers of “the conduct of legal proceedings in P’s name or on P’s behalf” – “P” being the client who lacks mental capacity. This is a solution although not the most desirable.
25. In conclusion, if a person demonstrates issues of diminishing and fluctuating mental capacity, he may at his best days, make a decision that seems sensible on its own, but it may still give rise to concern when considered alongside other decisions. Litigation consists of a series of events and demands that may be unpredictable and on occasion, urgent. Therefore, it is more often the case, that one necessarily must have a continuous state of capacity. However, this does not lend itself neatly to the assessment framework under the MCA.
26. What does this all mean for solicitors? In short, an abundance of caution is required before taking on a client that prima facie seems to have capacity. Solicitors should also, where practicable, encourage litigants to have an LPA in place prior to commencing a lawsuit to ensure less friction and problems in the transition. This acts as a protective measure against an unfortunate scenario where a person loses mental capacity after a suit has commenced.