The incapacitated client


Here’s an interesting case about lawyers, incapacitated clients, paternalism, and the right to be represented. An Alzheimers affected woman hired a beak to oppose a guardianship application brought by her brother. The court appointed another lawyer to act for her, suspecting that the man she professed to want to marry had in fact been behind the first hiring. The Court-appointed lawyer successfully applied to remove her own lawyer for a conflict of duties owed to her and to the man. An appeal court in the US capital reversed the decision, saying that free will cannot be countermanded on the basis of a hunch as to competence. Sounds like an important principle to me, else some mandarin in the Federal Government might decide that a doctor was not only an illegal alien of thoroughly rotten character but incompetent to boot and appoint a nice government lawyer resident in Nauru to act for him. The NSW Law Society has published a set of Client Capacity Guidelines for Civil and Family Law matters. The diagram featured is from it.

I acted for a solicitor sued by a former client. She said her medication affected her so at the mediation that the lawyer should pay her the difference between the millions she should have got and the paltry amount she considered she did get. I know, it didn’t make sense to me either. Anyway, during the professional negligence case, the lady seemed to flicker in and out of competence depending on whether an adjournment was needed. She had a barrister who stood up in the Supreme Court and said ‘We want an adjournment. Our client doesn’t have capacity. We expect to have the psychiatric report in 6 weeks’ time.’ I opposed the adjournment successfully — I had predicted the play and written to say ‘If you want an adjournment on Monday, get your medical evidence on oath and have your doctor there for cross-examination’, which didn’t happen. But I wondered what had happened when the woman told her lawyers ‘I don’t have capacity’. Or by what paternalistic process the lawyers had decided she did not have capacity, and what had happened when they said to her ‘Listen lady, we think you’ve lost your mind and we’re now going to charge you to go and tell the court that.’ What happened after the adjournment application failed was telling. The lawyers sought to have the matter stood down. They came back and said they were instructed to proceed. Since I wanted the matter to proceed, I didn’t object, but the whole affair was bizzare, and suggested to me that no one had the faintest idea about the rules relating to when a client has sufficient capacity to instruct lawyers — if there are any, and what a lawyer may do if s/he forms the view that the client does not have capacity.

Not long afterwards, I attended a lecture by the Law Institute’s Ethics outreach woman. I strongly suspect she spends much of her time travelling around giving much the same lecture. She said, point blank, that a lawyer may not act for a client who does not have capacity. That can’t possibly be right because lawyers appear for clients before the Mental Health Review Board all the time, and their clients are found to be psychotic and stay locked up in the mental health institution. (That reminds me: I acted for another lawyer sued for negligence. The case was ‘They thought I was crazy but I wasn’t. You didn’t get me out. So please pay me compensation for the time I’m spending in the mental health institution.’ I pleaded contributory negligence for (i) not obeying the lawyer’s instructions not to say a word during the hearing and (ii) doing so by uttering the words ‘No, rocks can talk.’)

Print Friendly, PDF & Email

One Reply to “The incapacitated client”

  1. Yes indeed, a very difficult area for the practicing lawyer whether your client has capacity to give instructions & what to do if you come to the conclusion they may not. Unfortunately there are no real hard & fast rules & the whole area is grey. This is unfortunate as whilst it is easy just to avoid these situations (ie not act for the Client) client’s in these situations are very often those who need serious & urgent help.

Leave a Reply