B1.5: Capacity Generally
A solicitor must (a) have instructions from their client and (b) be satisfied when taking instructions that the client has the capacity to give instructions in relation to that matter.
Capacity is presumed in all persons until there are indications of a need to question it. Clients are entitled to have their capacity assessed, even if this means a longer meeting than usual in order to ensure compliance with the UN Convention on the Rights of Persons with Disabilities.
Solicitors should always consider the nature of the specific instructions and the client’s ability to understand them and their consequences. For example, it could be said that the threshold for capacity in cases where a client is seeking to instruct a solicitor in relation to opposing compulsory treatment in hospital is lower than other more complex matters.
Indeed, in situations such as that example, the fact that the client is able to articulate opposition will normally be sufficient for the basic instruction and to establish a solicitor-client relationship. The solicitor’s obligation from then on is to provide all necessary support to let the client understand the position and to develop those basic instructions, as far as that can be achieved.
A series of meetings may be necessary for this. See for example Scottish Borders Council v AB, 2020 SLT (Sh Ct) 41, in which the sheriff referred, with evident approval, to a solicitor having met the client every three weeks over a period of several months in order to maximise the quality of instructions, reflected in an affidavit, from a client opposing a guardianship application. A client may understand for example a simple will or power of attorney, in which case the solicitor will be able to establish a solicitor-client relationship and requires to pitch both explanations and drafting in a manner and at a level which the client can understand. However, that same client might not be able to comprehend the ramifications of changing a complex trust, sale of heritable property, large gifts impacting on Inheritance Tax or implications to their health following medical intervention, even with maximum support.
The test of capacity should be linked to a client’s understanding, the nature of the instruction, and the support that can be provided.
If a solicitor does come to the view that they are unable to accept instructions from a client (either initial instructions or instructions during the course of a matter) then the solicitor would require to decline to act or withdraw from acting. In those circumstances, solicitors are reminded that their duty of confidentiality persists.
Solicitors should always be alert to any indications of possible vulnerability, whether related to concerns about capacity or other matters, such as the potential exercise of undue influence by another party. Wherever appropriate solicitors should aim to make contact with clients in person as opposed to relying on telephone and written communications. The Society’s Vulnerable Clients Guidance should be followed.
If there is any doubt as to a client's capacity to instruct in a particular case (for example a client may have a profound learning disability), input should be sought from an appropriate professional. Whilst the decision on whether or not a client has capacity remains one for the solicitor to satisfy themselves of the answer to, that solicitor must assess the client by appropriate means which should include their own knowledge of the adult and/ or the solicitor may take input from a GP, a clinical psychologist or other relevant persons.
If the client refuses to provide consent for the solicitor to obtain information from an appropriate professional that would allow the solicitor to satisfy themselves that the client does have capacity to provide instructions, then the solicitor should decline to act.
The solicitor’s role is not to be an expert in a mental capacity assessment, but the solicitor retains responsibility for compliance with the rule and cannot abdicate that responsibility to any other persons, professional or otherwise. It may be that careful discussion between the solicitor and persons providing input may be necessary to allow the solicitor to make as informed a decision as possible.
Capacity is a fluid concept and not one which is strictly medical. The use of talking boards and speech and language therapists may be required, akin to an interpreter where a client does not comprehend the English language. Solicitors require to provide clients with support and tools to be able to effectively communicate and relay instructions if they are capable of doing so. Advocacy workers can be extremely useful in these situations. Solicitors require to consider their client’s physical and mental needs and consult the appropriate professional to support their client in exercising their capacity. In particular circumstances, an appropriate professional could be (for example) a speech and language therapist, a psychologist or a social worker as well as a psychiatrist. Such assistance can help ensure compliance with human rights obligations to support access to justice and to legal services, and the exercise of legal capacity generally, to the maximum extent that can be reasonably achieved.
Solicitors cannot simply rely upon the legal presumption of capacity, but must take reasonable steps to facilitate the exercise of capacity, including in the matter of instructing a solicitor.
Last reviewed: 20 May 2022