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Client Incapacity

Purpose: To assist barristers who have doubts about a client's capacity - by reason of mental disorder or by reason of temporary intoxication - to understand advice, give instructions, or follow or take part in proceedings
Scope of application: All practising barristers

Issued by: The Ethics Committee

First reviewed: 01/02/2014
Last reviewed: 01/10/2023
Status and effect: Please see the important notice at end of this document. This is not "guidance" for the purposes of the BSB Handbook I6.4.

Required reading – Mental Capacity Act 2005 – Court of Protection – “protected party” – Masterman-Lister v Brutton & Co [2003] – tests and presumptions – fitness to plead – Advocacy Training Council’s toolkits – BSB Handbook obligations – duty of adviser – suggested approach (stage by stage) – professional client involved – Public Access cases – withdrawal & duties arising – other sources of assistance (OS) (Cafcass) – duty to the court – medical evidence – duty to the court – appointment of a ‘litigation friend’ – determinations by the courts – Bar Council’s Ethical Enquiries Service – client’s incapacity by reason of drink/drugs – keeping a record

Download: Client Incapacity:

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Important Notice

This document has been prepared by the Bar Council to assist barristers on matters of professional conduct and ethics. It is not “guidance” for the purposes of the BSB Handbook I6.4, and neither the BSB nor a disciplinary tribunal nor the Legal Ombudsman is bound by any views or advice expressed in it. It does not comprise – and cannot be relied on as giving – legal advice. It has been prepared in good faith, but neither the Bar Council nor any of the individuals responsible for or involved in its preparation accept any responsibility or liability for anything done in reliance on it. For fuller information as to the status and effect of this document, please see here.

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