Adults who may be protected parties
8.1 The applicant must give details in the Application Form of any referral to or assessment by the local authority’s Adult Learning Disability team (or its equivalent).The Local Authority should tell the court about other referrals or assessments if known such as a referral to Community Mental Health.
8.2 The court will investigate as soon as possible any issue as to whether an adult party or intended party to the proceedings lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings. A representative (a litigation friend, next friend or guardian ad litem) is needed to conduct the proceedings on behalf of an adult who lacks capacity to do so (“a protected party”). The expectation of the Official Solicitor is that the Official Solicitor will only be invited to act for a protected party as guardian ad litem or litigation friend if there is no other person suitable and willing to act.
8.3 Any issue as to the capacity of an adult to conduct the proceedings must be determined before the court gives any directions relevant to that adult’s role within the proceedings.
8.4 Where the adult is a protected party, that party’s representative should be involved in any instruction of an expert, including the instruction of an expert to assess whether the adult, although a protected party, is competent to give evidence. The instruction of an expert is a significant step in the proceedings. The representative will wish to consider (and ask the expert to consider), if the protected party is competent to give evidence, their best interests in this regard. The representative may wish to seek advice about ‘special measures’. The representative may put forward an argument on behalf of the protected party that the protected party should not give evidence.
8.5 If at any time during the proceedings, there is reason to believe that a party may lack capacity to conduct the proceedings, then the court must be notified and directions sought to ensure that this issue is investigated without delay.