Adam Harris (by his Litigation Friend ADNAAN MIRZA) v General Pharmaceutical Council

Capacity to participate in disciplinary proceedings is distinct from capacity to conduct an appeal. A court considering litigation capacity must address current evidence of both impairment or disturbance of the mind or brain and the resulting functional ability to make decisions relevant to the litigation. It must also consider practical steps that may assist the person. Where the litigation friend procedure is already in place, the court may require submissions on whether a preliminary capacity determination is necessary; the issue should not be assumed. Blanket prospective orders for evidence, disclosure, amendment or joinder are inappropriate before the issues have crystallised. A stay based on asserted incapacity and a prospective protective costs order should not be granted without a proper evidential and procedural foundation.

The proceedings were an appeal against a six-month suspension order imposed by the General Pharmaceutical Council on 28 October 2022. The appellant had subsequently been removed from the register. A litigation friend had been appointed following concerns arising from a traumatic head injury, and medical materials expressed opinions that the appellant lacked capacity to conduct litigation or participate meaningfully in a hearing.

The hearing concerned directions. The court considered the distinction between capacity in the Council’s proceedings and capacity to conduct the appeal, whether a preliminary issue on litigation capacity was required, and applications for a stay, evidence, disclosure, amendment, joinder and prospective costs protection.

1. Directions and applications. The court refused all orders sought by the appellant, including blanket permission for evidence, general disclosure, prospective amendment, joinder of a proposed appeal, a stay and a prospective order that there be no order as to costs. Costs were reserved.
2. Distinct capacity questions. Capacity to participate in the Council’s proceedings was relevant to the substantive appeal. It was distinct from capacity to conduct the present appeal and any linked appeal. The latter question arose because the litigation friend considered the appellant to be a protected party.
3. Evidence and preliminary determination. Current evidence on litigation capacity should address the diagnostic question of impairment or disturbance of the functioning of the mind or brain and the functional question of whether that impairment prevents the person making relevant decisions in the litigation. It should address the factors in section 3 of the Mental Capacity Act, including practical steps capable of assisting decision-making. The court did not decide whether a preliminary capacity ruling was necessary. It directed the respondent to provide submissions and materials, followed by a response from the litigation friend.
4. Prospective orders. Applications concerning evidence, disclosure, amendment of grounds and joinder should be made when the issues have crystallised. Blanket or prospective orders were therefore inappropriate. The stay was premised on incapacity, on which no ruling had been made, while the appeal was currently being progressed by the litigation friend. There was also no proper application, evidence or justification for a prospective protective costs order.

The judgment states that the proceedings were an appeal against a six-month suspension order imposed by the General Pharmaceutical Council on 28 October 2022. No lower-court citation is given.