11.15The same principles as set out in relation to P above apply to the determination of the litigation capacity of an adult party. However, because the focus of the proceedings will not initially be upon the litigation capacity of the adult party, it is often the case that it will only become apparent after proceedings have started that they lack litigation capacity. This gives rise to practical issues as to what should happen in such a case.

11.16In some ways the situation is relatively straightforward if the person has legal representation – it is clear that a responsible solicitor who has concerns as to the capacity of his or her client should take steps to obtain a medical opinion;3Whether that is from a GP, a psychiatrist or a psychologist will depend upon the circumstances of the case. For more on the duties of solicitors in relation to vulnerable clients, see the Law Society’s Practice Note: Meeting the Needs of Vulnerable Clients: http://www.lawsociety.org.uk/support-services/advice/practice-notes/meeting-the-needs-of-vulnerable-clients-july-2015/. if that opinion suggests that the client lacks litigation capacity, then the solicitor should take steps to ensure that a litigation friend is appointed before proceeding further.4See Masterman-Lister v Brutton & Co, Masterman-Lister v Jewell and another [2002] EWCA Civ 1889, [2003] 1 WLR 1511, (2004) 7 CCLR 5 at para 30.

11.17If the person is acting for themselves, however, then a difficult question can arise. It is ultimately a judicial question whether an individual is or is not a protected party.5See Carmathenshire CC v Lewis [2010] EWCA Civ 1567 at para 8 per Rimer LJ. If the court is in possession of information raising a question as to the capacity of a litigant in person to conduct the litigation, how is it to satisfy itself as to whether the person has the requisite capacity? It may be that the litigant in person is prepared to agree to undergo a medical examination, but what if they refuse? A party to proceedings cannot be ordered to undergo a medical examination6See also para 4.59 of the Code of Practice accompanying the MCA 2005: ‘Nobody can be forced to undergo an assessment of capacity’. Although see Re SA [2010] EWCA Civ 1128 where the court sought to require both P and her mother to cooperate in the carrying out of a capacity assessment upon P (for purposes of determining her capacity to make the underlying decisions in the case). On a proper analysis, there was an element of bluff deployed here because there was a strong suggestion that P was being influenced in her refusal by her mother. and the court is therefore faced with a difficult dilemma. In Baker Tilly (a firm) v Makar,7[2013] EWHC 759 (QB), [2013] COPLR 245. Sir Raymond Jack made clear that:

11.19We suggest, however, that in appropriate cases the court can – and should – make findings as to litigation capacity even where a party refuses to attend a medical examination where there is sufficient evidence. Such evidence may emerge from a variety of sources. In Re RGS,8[2012] EWHC 4162 (COP), [2012] EWCOP 4162. for instance, the court had limited medical information about RBS, P’s son, who was known to have a history of contact with psychiatric services but who refused to attend a medical examination. The court found RBS to lack litigation capacity. The court found that such information as there was from the professional witnesses and RBS’ own account founded the conclusion that RBS had an impairment or disturbance of the mind or brain. RBS’ own conduct during the proceedings gave rise to the finding that the impairment/disturbance had compromised his ability to understand, retain and weigh the information relevant to the litigation.

11.20In extreme cases, where a litigant in person refuses to take part in a medical examination, the court may be able to direct disclosure of the litigant’s medical records to an independent medical examiner who could then prepare a report based on the clinical record. A party’s medical records are confidential, but in Bennett v Compass Group9[2002] EWCA Civ 642, [2002] CP Rep 58. (a case relating to the disclosure of medical records in a personal injury case where the claimant’s capacity was not in issue), comments made by both Chadwick LJ10At paras 67–68. and Pill LJ11Para 88. would suggest that a (civil) court could make an order requiring a GP or hospital to disclose records directly to a party to the litigation without the consent of the person in question, although it is clear from the comments made in that case that such an order would be wholly exceptional. There is no reason in principle why such an approach could not be adopted by the Court of Protection, albeit after a very careful balancing exercise between the litigant’s rights to maintaining the confidentiality of their medical records under Article 8 (right to respect for private and family life) of the ECHR12See in this regard Z v Finland (1997) 25 EHRR 371 at para 95. and the potential benefits to them of being represented by a litigation friend.