Executive dysfunction under the judicial spotlight

In TB v KB and LH (Capacity to Conduct Proceedings) [2019] EWCOP 14 Macdonald J had cause to consider the phenomenon of executive dysfunction in the context of the question of capacity to conduct proceedings both before the Court of Protection and the High Court under its inherent jurisdiction.

The issue arose in the context of concerns as to financial abuse by a friend and carer of a 75 year old man with longstanding difficulties with alcohol consumption, which he dated to the breakdown of his marriage but which his family contended subsisted prior to that time and were responsible for the same. The consequences of his alcohol use included public urination, inappropriate and anti-social behaviour and consequential bans from a number of national institutions. P also had a number of medical issues. He suffered from back problems, suffered a minor cardiac event a number of years previously and had been diagnosed with prostate cancer, with secondaries in his lungs and bones. He had a permanent urinary catheter in place. He had limited mobility and used a stick or a wheelchair.  During the course of the proceedings, P decided to cease providing instructions to his solicitors and to seek to conduct proceedings as a litigant in person.

Macdonald J reviewed the authorities on capacity to conduct proceedings  In light of P’s decision to seek to conduct the proceedings in person, he noted (following White v Fell (unreported) 12 November 1987, quoted by Kennedy LJ in Mastermann-Lister v Brutton & Co at [18] that “where a litigant in person does not, in their own right, have capacity to conduct proceedings, the question remains whether they have the capacity to instruct others to conduct those proceedings on their behalf. This is consistent with the principle that an individual who, by themself, lacks capacity on the subject matter in issue should be facilitated to make a capacitous decision on that subject matter by the taking of all practicable steps to help them to do so. Where a litigant in person lacks capacity to conduct proceedings absent advice and assistance and lacks capacity to instruct advisers, he or she will lack capacity to conduct proceedings. A question remains as to the position where a litigant in person lacks capacity to conduct proceedings in his or her own right but has capacity to instruct advisers to conduct those proceedings and chooses not to do so.”  On the facts of the case, however, it was not necessary ultimately for Macdonald to answer it.

Macdonald J also observed that:

the nature of the dispute is not the only component of the relevant subject matter required to be considered in the context of determining whether a litigant has capacity to conduct proceedings. More fundamentally, the nature of legal proceedings themselves, and in particular the specific demands they make on litigants, also fall to be considered. I accept Dr Barker’s characterisation of legal proceedings as not being simply a question of providing instruction to a lawyer and then sitting back and observing the litigation, but rather a dynamic transactional process, both prior to and in court, with information to be recalled, instructions to be given, advice to be received and decisions to be taken, potentially on a number of occasions over the span of the proceedings as they develop.

Having set the legal and evidential context, Macdonald J was

36. […] satisfied that I must attach significant weight to Dr Barker’s view that the defects identified in P’s memory and executive function mean that he would not be able to retrieve relevant information and would not be able to use and weigh relevant information in that context. Dr Barker made clear to the court that these are features that are typical of disorders of short-term memory and executive function clearly identified in the neuropsychological testing by Professor Kapur, stating in cross examination that:

“People with executive functioning deficits and deficits in their short-term memory may be okay, but they may have difficulty in electing the right bits of information and using them in the right context. There are glaringly obvious occasions when [P] has not been able to bring to mind information that it is important to know in the moment to make the relevant decision.”

 37. During the course of his cross-examination of Professor Kapur, Mr Glaser [Counsel for P’s, friend, LH] explored with that expert witness the steps that could be taken to assist P to overcome the neuropsychological difficulties identified with a view to helping him make capacitous decisions on the matters in issue. Professor Kapur was clear that whilst a limited number of compensatory strategies could be deployed to address the deficits in P’s memory identified by the neuropsychological testing, in the case of the executive functioning difficulties identified, there was far less by way of compensatory strategies that could be deployed.

38. In the circumstances, and notwithstanding the careful efforts of Mr Glaser, I am satisfied that the expert evidence in this case provides a sound basis for the court to conclude that P is not able to understand, with the assistance of such proper explanation from legal advisors, the issues on which his consent or decision is likely to be necessary in the course of these proceedings, as the result of an inability to retain information, by his short-term memory issues, and an inability to use or weigh that information as part of the process of making the decision, by reason of deficits in his executive function. Further, I am satisfied that the expert evidence in this case provides a sound basis for concluding that that situation results from an impairment of, or a disturbance in the functioning of, P’s brain. I am also satisfied that my conclusions in this regard are reinforced by other aspects of the information before the court beyond the expert evidence.

As noted above, P had sought to dispense with his lawyers and conduct proceedings himself:

40. During the course of the hearing P presented as agreeable and charming, at one stage enquiring after the short adjournment whether I “had had a good lunch” (in an ebullient tone that left me with the strong suspicion that P’s idea of the judicial luncheon is a long way from the modern reality) and, as I have noted, at one point telling me that the best way I could make him more comfortable in the courtroom was “to be quick about” delivering my judgment. Beyond this, and whilst in no way determinative, my exchanges in court with P left me with doubts about his understanding of the proceedings. He made no real contribution on the question of an adjournment in light of the absence of certain witnesses. It is, of course, not reasonable to expect a litigant in person to articulate in detail the legal merits of an adjournment such as ensuring an Art 6 compliant hearing, or to deploy exhaustive arguments as to the lack of relevance of particular witnesses to the issue in hand in an effort to avoid one. I also consider that P’s case appeared broadly co-terminus with that of LH and that Mr Glaser made extensive submissions. However, I was nonetheless left with the distinct impression that P’s lack of contribution was borne out of a paucity of understanding. The same impression was given by his lack of engagement in the process of questioning witnesses who were stating things with which, on the face of it, he plainly disagreed, notwithstanding the offer of having those questions put through me. Again, whilst I take into account that Mr Glaser asked many questions that were also supportive of P’s stated position and that the court environment can be an intimidating one, and whilst in no way determinative of my decision, this situation reinforced for me the observations of the experts that I have set out above and had the effect of adding colour to those expert opinions.

P had not been joined previously as a party to the proceedings before the Court of Protection, so Macdonald J had to apply the ‘menu’ for participation set out in COPR r.1.2.  He was clear that the appropriate manner of securing P’s participation in these proceedings is to join him as a party to the same. Pursuant to COPR r 1.2(4) P’s joinder as a party will only take effect on the appointment of a litigation friend.  In the circumstances, he further confessed himself to be somewhat puzzled by the contents of the letter from the Official Solicitor declining a previous invitation to act as litigation friend was it was “not clear what value he can bring to the proceedings (particularly at this late stage)”. The letter further observes that, in the assessment of the Official Solicitor, ‘The issues are not legally complex’.”  Macdonald J observed that

Having regard to the matters set out above, the answer to the question of what value the Official Solicitor can bring to the proceedings as a litigation friend for P might perhaps be thought to be plain on the face of the papers. Namely, to identify and advance, independently and objectively by the fair and competent conduct of proceedings, the best interests of an elderly protected party who is caught up in a contentious dispute between his putative carer and his son as to the proper administration of his financial and personal affairs and, in circumstances where both his putative carer and his son have potentially vested interest in the outcome, where he has no one to identify, articulate and champion his best interests before the court (or to put it in the language of the role of Solicitor to the Suitors, the precursor to the Official Solicitor of the High Court of Chancery, has no ‘natural protector’). The Official Solicitor’s assessment of the issues as “not legally complex” is also somewhat difficult to understand in the circumstances that I have articulated during the course of this judgment and in the context of the inherent complexity of retrospective assessments of capacity.


In addition to containing a useful review of the law and authorities relating to capacity to conduct proceedings, the case is of no little interest for adding to the (so far) very small stock of authorities considering executive dysfunction.  This can be difficult to capture with the four walls of the MCA 2005: this case shows how it can be addressed within the context of a series of ongoing decisions, and the care that needs to be taken before reaching a finding that a person is unable to use and weigh relevant information on the basis of executive dysfunction.  Importantly, Macdonald J had before him evidence from Dr Barker of “glaringly obvious occasions when [P] has not been able to bring to mind information that it is important to know in the moment to make the relevant decision.” In other words – and as we made clear in our capacity guide – it is crucial before making a determination of incapacity on this basis that there is not mere speculation that P might not be able to bring to mind relevant information at the point that it was necessary, but of repeated occasions when this has been the case.  Further, and importantly, Macdonald J had had explored before him support strategies that might enable P to overcome the deficits, but also evidence these would not be effective in overcoming the problems with P’s executive function.

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