Gill, R (on the application of) v General Medical Council

Where an application is made to declare a person a vexatious litigant, the burden of proving that the person is a patient rests on those asserting that status. The court must approach the issue cautiously because patient status may justify interference with personal autonomy. Even where the evidence does not yet establish patient status, a serious risk that the person may be unable to conduct the hearing properly can justify protective directions. Those directions may include advance attendance by the Official Solicitor, with authority to act if the court later considers representation necessary.

The Attorney-General proposed applying to the Divisional Court for an order declaring Mr Gill a vexatious litigant under section 42 of the Supreme Court Act 1981. The present application sought directions for the proposed proceedings. Medical evidence indicated that Mr Gill had chronic paranoid schizophrenia, had recently been detained under section 3 of the Mental Health Act, and might have capacity while compliant with medication but become difficult to engage when non-compliant. The issue was whether protective arrangements should be made before the substantive hearing despite insufficient evidence at that stage to establish that he was a patient.

1. Directions granted. The court directed that the Official Solicitor attend the proposed Divisional Court hearing through a person entitled to appear there, to act as amicus if required or, at short notice, to accept instructions to act for Mr Gill if the court considered that appropriate.
2. The burden of proving that a person is a patient rests on those asserting that status. Patient status may permit others to interfere with the person’s autonomy, so the court must not make such a finding lightly.
3. The medical evidence did not presently satisfy that burden. Nevertheless, the evidence created a serious risk that Mr Gill might be unable properly to represent himself at the substantive hearing. His recent non-compliance with medication, failure to attend psychiatric appointments, and confused application were relevant to that risk.
4. That risk justified anticipatory case-management directions under the overriding objective. Without such arrangements, the hearing might be rendered nugatory, with wasted costs, ineffective use of court resources and delay.
5. The court noted that no apparent authority dealt with a person who could conduct litigation while taking medication but might be unable to do so when not medicated. The Attorney-General was permitted to take all further necessary steps without further reference to the court. The skeleton argument was to be served by 22 September 2006, the hearing was to be expedited, and costs were reserved.