Persons under disability
Article reproduced with kind permission from and all acknowledgements to the Law Society Gazette (“In practice” section) 07/02/2008
There have always been rules to protect 'persons under disability', whether that person is the claimant or defendant. The new part 21, re-titled 'Children and Protected Parties', came into force on 1 October 2007.
The rules on children are unchanged; indeed, procedurally the rules are hardly changed for 'protected parties', but the test is different.
The Civil Procedure Rules (CPR) used the simple term 'patient', defined by reference to the Mental Health Act 1983. The test was simple: either a party was or was not a patient. That simple test has now gone, to be replaced by one which is undoubtedly fairer but may be more difficult to apply.
The change was required because Parliament changed the substantive law in the Mental Capacity Act 2005, the relevant provisions of which came into force on 1 October 2007. It is irrelevant whether a party is or is not a patient. The rule is now concerned with whether the party 'lacks capacity' within the meaning of the Mental Capacity Act 2005.
Under the new Act, the test is issue-based. A person may lack capacity for some purposes but not for others. The term 'patient' is replaced by 'protected party' - meaning a party, or an intended party, who lacks capacity to conduct the proceedings.
Those advising a client must, as always, consider whether the client is competent to give instructions. A 'protected party' must have a litigation friend to conduct proceedings on his behalf. If it is the defendant who lacks capacity, new rule 21.3(2) prevents any application before proceedings have started without permission of the court, and limits the steps that can be taken to issuing and serving a claim form or applying for the appointment of a litigation friend (see rule 21.8).
The rule on service has also changed - see the new table in rule 6.6 (1).
Service is affected upon the attorney under a registered power of attorney; the donee of a lasting power of attorney, the deputy appointed by the Court of Protection or, if there is no such person, an adult with whom the protected party resides or in whose care he is.
Because the test of capacity is now issue-based, it will not always be easy to apply. An unusual, eccentric or even bizarre lifestyle cannot, of itself, be conclusive. What of the person on incapacity benefit due to severe depression, who is unable to cope with the vagaries of life? It cannot be automatically assumed that such a person 'lacks capacity' within the meaning of the Mental Capacity Act 2005. And yet he may do so.
Compromise of a claim where a protected party is claimant or defendant requires approval of the court (rule 21.10). Where money is recovered on behalf of a protected party, before giving investment directions under rule 21.11, the court must first consider whether the protected party is a protected beneficiary.
Amendments
There are consequential amendments to other rules and, in particular, to the part 21 practice direction, which is replaced in its entirety.
Although many changes relate to the change of terms, the new practice direction is not confined to that. The Mental Capacity Act 2005 reconstitutes the Court of Protection as a superior court of record for England and Wales with a jurisdiction far greater than under the former Mental Health Act 1983. Thus, for example, the new practice direction 21 includes provisions for appeals to the Court of Appeal from the new-style Court of Protection.