LB Brent v SL & NL (2017)

Keywords: Capacity to litigate

The case concerned SL, a 60-year-old woman who had been diagnosed with Schizophrenia and Obsessive Compulsive Disorder.

SL had previously lived with her mother and brothers, but there had been concerns about her self-neglect after her mother died in 2014, leading to her admission into hospital under the MHA. She had been discharged from a s.3 to supported living under a CTO. SL had consistently expressed a wish to return home. Believing that it was not in SL’s best interests to return home, the local authority had sought a welfare order for authorisation from the Court of Protection for SL to remain in the supported living accommodation in circumstances which amounted to a Deprivation of Liberty.

In the course of that application, some uncertainty arose around SL’s capacity. Reports from two psychiatrists were already before the court and a further independent expert report was also commissioned.

All the experts agreed that SL had Schizophrenia and that SL did not accept that diagnosis. Consequently, SL also did not accept that she had previously neglected her own care, nor did she accept her need for care and treatment.

The independent psychiatrist concluded that SL had the intellectual ability to understand decisions about her care, treatment and residence. However, he considered that SL’s refusal to accept her diagnosis and the care she needed as a result was due to her lack of insight into her illness (itself a result of that illness) and, therefore, that she was unable to use or weigh that information. Thus, SL lacked capacity to make decisions about her care and treatment for Schizophrenia and about her residence (given the relevance of her illness to that decision).  

On the other hand, the independent psychiatrist concluded that SL did have capacity to manage her financial affairs. For example, she knew her income and capital positions, understood the cost of her accommodation and had expressed concern about her liability for the costs of the Court of Protection proceedings.

The independent psychiatrist was unable to reach an overall conclusion about SL’s litigation capacity. SL had consistently stated that she did not want the case to continue. The reasons she gave were the financial cost to her, the length of time for which the case had continued and her dislike of having to repeatedly discuss the issues.  Despite her desire to return home, SL had made clear that she would prefer to remain where she was, rather than have the case continue. From his assessment, he concluded that SL had the intellectual ability to understand the matters at issue in litigation. He concluded that her stated view about the case was based on reasons which were valid for her to take into account and was not unreasonable, nor driven by delusion. However, he was of the view that ‘emotional blunting’, apathy and lack of motivation as a result of Schizophrenia were likely to have undermined SL’s ability to weigh the factors involved properly and, thereby, undermined her capacity.

Subject-matter capacity and litigation capacity are not identical. However, in most cases, where P lacks capacity in relation to the subject-matter at issue in litigation, they also lack the capacity to litigate (Sheffield CC v. E).

DJ Glentworth considered carefully the importance of not “setting the bar too high” in assessing litigation capacity, recognising the significant interference with an individual’s right to self-determination of a finding that they lack capacity in relation to an important matter. She also highlighted the need to consider the specific litigation involved and the decisions likely to be needed when deciding as to litigation capacity.

Making that assessment in relation to SL’s case, it was clear that decisions would be needed in the course of the litigation which required understanding and acceptance of SL’s diagnosis:

“If SL does not lack litigation capacity it is difficult to see how a solicitor instructed on her behalf could consent to an order which included a declaration that she lacked subject-matter capacity. The difficulty arises because SL does not accept that she has schizophrenia. On that basis, it must be her case that the diagnostic test is not met. When dealing with that specific issue in the telephone discussion with Dr Series SL said that she would not agree to an order which recorded that she had schizophrenia; that she accepted that she had neglected herself in the past, and that she agreed to continue to live where she is now. He explained that if she was not prepared to agree some compromise this might mean that the case would continue, further costs would be incurred and there might be costs consequences for her. Her eventual response was that she did not want to pay any more for the case.” (para. 29)

In this case, the matters of SL’s care, treatment and residence were integral to the process of this litigation. SL would need to be able touse and weigh information about those matters in order to make decisions and give instructions in the process of this litigation.He accepted that SL’s views were not based on delusional beliefs and that she had a broad understanding of the matters involved in the litigation. Nevertheless, he was 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” and, therefore, concluded that SL lacked litigation capacity.


This would mean, ironically, that her wishes and feelings that the case should end, would be able to be complied with, as it meant that her lack of capacity could be recorded on the order.

This case provides useful clarification and detail in relation to what is required for capacity to litigate. It is clear that, in accordance with MCA principles, capacity to litigate must be considered in terms of specific proposed litigation and not in the abstract. Instances may well arise where P lacks capacity to litigate whilst having capacity in relation to the subject matter of the litigation. Similarly, instances will arise where P has capacity to litigate in relation to one matter, but not others. However, this case underlines that, for P to have litigation capacity, it is necessary for P to have capacity in relation to the subject matter of litigation where decisions involved in the litigation depend (as they will in the vast majority of cases) on such capacity.

Full transcript at: