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Case highlights importance of protecting the rights of individuals who lack capacity

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Court of Protection decides that man with irreversible stoma has the right to choose to die

In the recent reported case of Z [2018] EWHC 1488 (Ch) the protected party is Z, a successful businessman who carried out business ventures with his brothers. The applicant is the son of one of Z’s brothers who is now deceased. In this procedural application, the applicant sought to be joined as a party to the main proceedings, which will determine a number of issues such as whether Z has capacity to manage his property and affairs, and who should manage them if it is found that Z lacks capacity.

In the main proceedings, the applicant explained how Z bought out his father’s interests in their joint ventures and promised that he would “look after” the applicant and his sister. He also explained how towards the end of his father’s life, Z promised to pay a specified sum to the applicant if one of the former joint-ventures was sold. Although a portion of this sum was paid, the applicant asserts that following his father’s death, Z made a promise to pay him the remainder of the sum.

Thus, the applicant wished to join the main proceedings as a respondent on the grounds that he has sufficient interest. “Or alternatively that it is desirable to join him so that the court can resolve all matters in dispute in the proceedings and/or an issue which is connected to the matters in dispute in the proceedings".

In his judgement, Mr Justice Norris explained that the proceedings are not “an adversarial contest” and compared the role of the court to being “inquisitorial”. This means that the judge will take into account the views of people who have “contributions of value to make”. It was clarified that Z is the focus of the main proceedings as well as whether he had “the capacity for autonomous action in relation to specific transactions”, and if it is found that Z lacked capacity, then what is now in his best interests.

Mr Justice Norris stated that nobody has a right to insist on being a party, as it is the judge’s role to decide what will be of real assistance, when reaching a conclusion on Z’s capacity and best interests. He went on to say that the focus is on the matters to be decided on in the main proceedings, and whether joining Z’s nephew as a respondent would cause those matters to be more justly and proportionately addressed.

Mr Justice Norris also emphasised the importance of resolving the main proceedings speedily. It was concluded that although it is important that the applicant’s “relevant and helpful evidence” is put before the court, it is not necessary for the applicant to be joined as a respondent.

Not only would joining the applicant potentially delay the rapid resolution of the case, but the applicant also has his own “separate commercial interest”, which is not a matter for the main proceedings. Mr Justice Norris was unable to see what value the applicant could add to the debate in the main proceedings, and thus the court refused the application and directed that the applicant's witness statements stand as evidence in the main proceedings.

This case illustrates the important role that the Court of Protection has in protecting the rights of individuals who lack capacity.

If you would like advice on an issue relating to mental capacity and Court of Protection please call us on 01616 966 229 or complete our online enquiry form and we will contact you directly.