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Mental health, capacity issues and family law

Nov 20, 2019, 12:03 PM
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Mental health and wellbeing is becoming increasingly important, not only within daily life but in family law cases. A family breakdown and/or disagreements between parents as to the arrangements for their children can take a toll on mental health. This can be also be added to by money troubles following the breakdown of the relationship, dependence on alcohol due to the marriage breakdown or involvement of drugs/gambling.

In a recent survey carried out by Irwin Mitchell as part of World Mental Health Day, it was noted that 87% of family lawyers said that either most or some of their clients had expressed feelings of anxiety, depression or mental health issues because of their litigation proceedings. 89% said they suspected their clients were reluctant to ask for help. 92% of family lawyers said their client’s mental health concerns became apparent in the first six months of the proceedings and out of that percentage, 68% of mental health issues appeared in the first three months.

It is our role as solicitors and advisors to our clients to ensure that they are capable of understanding the proceedings and the advice they are given so that they can provide us with instructions. Given the high tension and emotions which run in family cases, it can be difficult for clients to be able to process the information you give to them and weight up the risks.

There can be occasions whereby emotions and issues with mental health can deteriorate to an extent whereby a person cannot weigh up the risks of the advice you are giving and provide you with instructions.

There is a presumption that a person has the capacity to make their own decisions unless there is evidence to the contrary. As a case progresses, it may be that a client’s mental health has deteriorated to a point whereby they lack capacity. The Mental Capacity Act 2005 stipulates that a person who lacks capacity, due to illness or a disability such as a mental health problem, dementia or a learning disability, do the following:

  1. Understand information given to them
  2. Retain that information long enough to be able to make the decision
  3. Use or weigh up the information to make the decision
  4. Communicate the decision

In family cases, it is usual for clients to give you instructions based on their emotional feelings towards their former partner/spouse. This can mean that the instructions can appear irrational or incomprehensible. This does not necessarily mean that a person lacks capacity. 

Capacity is a fluctuating concept, one day a person may have capacity to make a decision on one particular issue but then on another day may not be able to do so.

It is important that when advising a client that you remain vigilant as to their mental state and whether the instructions you have been given have been formed by the client after considering the pros and cons to them.

If you feel that your client lacks capacity, it is important that any family proceedings are stayed pending an assessment being carried. An assessment should be carried out by a medical professional and it is important that the assessment consider whether your client can give instructions, whether they can partake in legal proceedings and whether they can give evidence as part of any proceedings.  The outcome may be a combination of capacity/lack of capacity.

If the client lacks capacity, they will require support from a trusted person who can act in their best interests. If within proceedings then a litigation friend would need to be appointed by the court to act in your client’s best interests. This person could be a family member or friend or someone more professional. As a last resort, the Official Solicitor can be instructed as a litigation friend following an order of last resort being made by the court.

Many people can see having a litigation friend as something negative and that it will negatively impact their case, but this is not true. A better outcome will be achieved if clear instructions are provided to enable the case to progress proactively. At the conclusion of the proceedings, most clients find that they are able to focus on improving their mental health for the future.

Do not be afraid of suggesting to your client that they should seek medical support if you feel it will benefit them or to suggest that their capacity should be assessed if you feel it is needed. It is an extremely stressful time for clients and it is important that they take care of themselves and we also look out for them.

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