Does P have litigation capacity?

The issue of whether P had litigation capacity was considered in the recent case of P, Re [2021] EWCOP 27.

P, a 60 year old woman, has diabetes, paranoid schizophrenia and HIV. A hearing was held to ascertain whether she had litigation capacity after proceedings were brought by an NHS Trust on 28 January 2021. An Application was made by the NHS Trust, as P had refused to take her medication prescribed to treat her HIV since 2018. P suffers with fixed delusional beliefs and ongoing hallucinations, resulting in her hearing God telling her not to take the medication, and her also seeing snakes arise from her HIV medication.

The NHS Trust sought orders and declarations that P lacked the capacity to decide whether or not to take the medication and explained that it was in her best interests to take the medication and that therefore she should be made to do so.

In a capacity assessment in December 2020, P’s consultant psychiatrist concluded that P had litigation capacity, however, did not have subject matter capacity.

Following a hearing in February 2021, an Order was made confirming that it was in P’s best interests for her to take the daily oral medication, however it had no effect and P still refused to take the HIV medication.

In March 2021, this changed as following a capacity assessment, P’s care coordinator concluded that she no longer had litigation capacity. The consultant psychiatrist was asked to undertake a further assessment and agreed that P now lacked litigation capacity.

The matter was reviewed again on 28 April 2021. At the hearing, the question was whether P had litigation capacity to conduct the proceedings, and this was not an issue. It was concluded that P did not in fact have litigation capacity and that the decision by the consultant psychiatric on subject-matter capacity, should have led to a decision made in respect of the capacity to conduct litigation about that very subject matter. The Judge confirmed that he disagreed with the initial assessment undertaken by the consultant psychiatrist, and the finding that P had capacity to conduct the litigation. Following this decision, the Official Solicitor agreed to act as Litigation Friend for P in the ongoing proceedings.

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