By Alex Morrison -
Snapshot
- This article explores the law relating to a client’s capacity (or incapacity) to provide legal instruction in the context of civil proceedings.
- When forming an opinion on capacity, legal practitioners may be guided by medical opinion, but a proper assessment will account for the broader circumstances that are specific to the client’s situation.
- There is no universal test for capacity and legal practitioners must combine expert medical evidence and contextual insights with their professional discretion and judgement to make informed, ethically sound decisions.
An important starting principle is the presumption a client has capacity to make their own legal decisions unless the evidence clearly shows otherwise. As expressed by Gleeson CJ in Easter v Griffith (1995) 217 ALR 284: ‘a determination that a person lacked (or has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter’ (at 290).
A ‘person under legal incapacity’ is defined by section 3(1) of the Civil Procedure Act 2005 (NSW) as follows:
‘… any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes –
(a) a child under the age of 18 years, and
(b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and
(c) a person under guardianship within the meaning of the Guardianship Act 1987, and
(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and
(e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs’.
