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Friday, August 08, 2008
  Capacity to Litigate
The abuse of the provisions relating to the "capacity to instruct" a solicitor continues in the Family Division. It appears now that this is a special trick used by some social workers and legal departments to prevent people from fighting the system.
 
Comments:
I don't understand why you say this is a special trick? Lawyers have no professional choice when someone does not seem to have the competence to instruct. The client has to be assessed by a Psychiatrist - though sometimes a GP is accepted. It is right to say that if someone is deemed incompetent they are likely to lose the case - if too incapacitated to instruct the parent is unlikely to be able to parent. And most of the time if parents are at that level they really cannot safely parent unless they are properly supported - which they often are not and this is the shame which I would suggest needs addressing. It would help to know what sort of trick you are talking about.

Jacquig
 
This is, of course, the question as to whether or not someone is really incapable.
 
I don't understand why you say this is a special trick?

I have seen first hand at least two people who are supposedly “incapacitated” yet they know exactly what the case is about & talk about the case with great insight, therefore can obviously instruct a solicitor, it really is not up to a psychologist to say otherwise “opinion” can’t trump “reality”, in fact in one of these cases the GP actually could not believe his patient had an official solicitor when she asked for a referral to a new psychologist & the GP wrote a letter to the court stating at the time this person was said to be “incapacitated”, I saw her & she was fully functioning & knew what the case was about

Lawyers have no professional choice when someone does not seem to have the competence to instruct. The client has to be assessed by a Psychiatrist - though sometimes a GP is accepted.

There is a question as to why anyone’s solicitor would want to undermine their client, the answer is simple “conflict of interest” many solicitors do work for both parents & local authorities, besides local authorities create custom for the solicitor even if they are representing the parent(s) at the said time, both the people I'm aware of in fact live in the same area, have the same solicitor, same social worker, same support worker & both claim & are quite clearly capable, I find that a bit odd to say the least.

It is right to say that if someone is deemed incompetent they are likely to lose the case - if too incapacitated to instruct the parent is unlikely to be able to parent. And most of the time if parents are at that level they really cannot safely parent unless they are properly supported

You make a great point & this is exactly what I suspected, parents who are considered “incapable to instruct a solicitor” will get no legal representation because they are considered by default to be too incapable to parent, this is why the official solicitor route is getting more & more popular between professionals, after all the parents are bound to fight back, but tell an Official Solicitor that the person is “incapable” & provided the certificate & you have won without any hassle & the parent is overridden regardless of their objections, after all they are just “incapable”.

I would really like to know the official figures of how many children the Official Solicitor does get back from the state, I suspect it would be an handful at best, at worse zero.
 
When I say lawyers have no professional choice about whether to invite the OS to act I mean just that. If a lawyer has a concern about a parent's capacity to instruct our professional code of conduct obliges us to have that investigated and if a Psychiatrist agrees that the parent lacks capacity the OS must be invited to act. It is not done because of any wish to undermine the client's case although I accept that it often has that effect. Solicitors do not in fact generally take work from parents and the local authority but barristers do although personally I try to avoid working for and against the same local authority.
One of the things that could be looked at more carefully is the test which is used by Psychiatrists to determine whether someone is not competent to give instructions. It would also be useful to have some more guidelines for lawyers on what to do if someone is 'incompetent'. I will do a post on my own blog - bloody relations.
jacquig
 
Why the OS, why not a family friend. Masterman-LIster v Brutton is quite clear in any event.

There are lawyers that use advocates to assist parents who really do have learning difficulties - avoiding a "next friend". However, there are too many con tricks in this part of procedure.
 
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