Mental Capacity in Injunction and Contempt Proceedings

This article has been provided by Andrew Fairman from MSB Solicitors. 

MSB Solicitors are an award winning legal firm with specialist experience in ASB and community safety. 

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A Civil Injunction is an extremely useful tool in preventing and managing anti-social behaviour.

However, this practical legal tool is not without its challenges, which can arise at both within injunction proceedings, or perhaps, later during contempt proceedings following a breach of the injunction. A common challenge is capacity, which is a complex legal concept. Often when we deal with capacity within injunction or contempt proceedings, we are dealing to two questions which are:

A) The Respondents capacity to litigate, and

B) The Respondent’s capacity to understand and or comply with the terms of an Injunction Order.

Capacity to Litigate

This concept of capacity relates to a Respondent’s ability to conduct proceedings on their own behalf and provide instructions to any legal representative they may have.

For a person to lack capacity in the legal sense they must lack the capacity in accordance with the Mental Capacity Act 2005 ( “ the Act”).

The Act creates a presumption of capacity along with the concept that a person should not be treated as unable to make their own decisions simply because they make unwise ones. This in itself does not create a lack of legal capacity.

Section 2(1) of the Act defines that a person lacks capacity in relation to a matter if at the material time they were unable to make a decision for themselves because of an impairment of or disturbance in the functioning of the mind or brain. Capacity is time and matter specific, and it can fluctuate. The test is then set out in Section 3 of the Act. For the purposes of Section 2 a person is unable to make a decision if they are unable:

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means).

The basic principle from a legal sense is that capacity is presumed and in order to dispel this presumption it must be rebutted by evidence, which most frequently occurs in 2 manners, either via capacity assessment (usually from a GP), and or a medical report from an expert consultant psychiatrist. specifically produced for the purposes of the proceedings.

If a Respondent lacks the mental capacity to litigate, they will be a Protected Party for the purposes of any proceedings, pursuant to Civil Procedure Rule 21 and a litigation friend must be appointed. A litigation friend can be any suitable person on behalf of the Respondent and can be a family member or close friend. Alternatively, if no such person exists or is willing to act as a litigation friend, then the Official Solicitor will be invited to act as their Litigation Friend.

A Litigation Friend must direct proceedings on behalf of the person who lacks capacity which means they will make decisions in their best interests, do everything they can to tell them what’s happening in the case and find out their wishes and feelings. They will also talk to their solicitor about what’s happening, get advice from them and give instructions to them in the other person’s behalf. They may also have to pay any costs ordered by the Court.

Capacity to Understand and or Comply

Just because a Respondent lacks or has capacity to Litigate, does not mean they have capacity to understand and or comply with an injunction, remember, capacity is matter specific.

A Respondent must have mental capacity to understand and injunction and also have mental capacity to comply.

This is a separate issue with a separate legal test. This is colloquially known as Wookey capacity following the leading case on this Wookey v Wookey [1991] 3 All ER.

The general position in relation to capacity to comply is that a Court should not make an Order in a situation where a Respondent isn’t capable of understanding what they are doing. The main question is whether a Respondent is aware that the actions they are taking are anti-social behaviour, and if the Respondent is not a Court is unlikely to make an Order and any such Order made would effectively be unenforceable.

The key questions on capacity to comply are:

  • Can a Respondent understand the terms imposed?
  • Can a Respondent understand breaching those terms is wrong and what the consequences may be?
  • Can a Respondent understand their actions are amounting to anti-social behaviour?

The important differential is that just because someone does not care of those consequences or is likely to carry on the same actions leading to a breach, it does not amount to the same position as having a lack of understanding around it. This is a similar concept to that of an unwise decision.

In situations where capacity to comply is an issue, it is always worth looking to see if the terms of the Order could be amended or simplified to ones which could be understood and complied with by a Respondent, but this will of course be on a case-by-case basis.

An Applicant may be faced with a situation whereby on some occasions a Respondent may be able to comply and at others not, for example if medication is not being taken as prescribed then capacity to comply may be lost. This is known as fluctuating capacity. This does not preclude the Court from making an Order but does present a challenge at the point of enforcement upon a breach as the question will need answering as to whether or not a Respondent had capacity at the time of the breach, which will likely need additional medical evidence. If it is a medication issue for example, it will need exploring if the Respondent has the capacity to make the choice as to whether or not to take this. As we have seen already, an unwise decision does not amount to a lack of capacity.

Capacity can be a very tricky hurdle for Registered Providers of Social Housing in pursuit of an Injunction to curb anti-social behaviour and this must be a path treaded carefully. A Court will want to get to the bottom of this point and it is likely the Court will be wary of imposing an Order where capacity is a concern.

The need for a Respondent to provide medical evidence in relation to capacity can also lead to delays in proceedings which in turn can affect witness confidence. It may be worth raising this with complainants as soon as you become aware to enable you to manage the witnesses expecttaions.

Once a medical report is obtained an Applicant within the proceedings will under Civil Procedure Rule 35 have the ability to put written questions to that medical expert. This can be a useful tool, but also a double edged sword as in the process of asking the questions responses may be less favourable.

It is also worth noting that whilst an initial Order may be obtained, for example in a scenario where it is undefended, but at any later Contempt proceedings capacity can still be raised and the issue of the Injunction Order continuing in place questioned depending on the capacity outcome.

If you have any questions or queries in relation to capacity then do feel free to get in touch with Andrew Fairman, Partner at MSB Solicitors.

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