I do alot of consent and capacity board cases. These are cases where a patient is made involuntary in a psychiatric facility and are required to stay in hospital, against their hospital. If you recall, Britney Spears and Amanda Bynes were required to stay in hospital on 51-50’s as they are called in California. I come in and try to get them released from hospital. It is like a bail hearing. I review the forms completed by the psychiatrist and make sure all the elements of the test under the Mental Health Act have been met.
There are times when the patient is too sick to provide adequate instructions and sometimes will terminate the lawyer due to extreme paranoia and distrust of the lawyer. The Consent and Capacity Board wants the patient to have a lawyer to protect the patient. If I am at the hearing and haven’t left after having been terminated by the patient, the Board will ask me to stay as Amicus Curaie or friend of the Court to basically protect the patient and assist the patient to ensure their rights are not being derailed. This is enormously satisfying because you are helping the patient, and at the same time following the patient’s instructions that you cannot represent them.
The question begs how far does one go to act as Amicus Curaie?
Last week I was at the Court of Appeal to view an appeal of a judgment my client had won at the Superior Court of Justice that we had won. We were successful on all accounts including costs against the lawyer personally.
The appeal was dismissed by the Court of Appeal. The panel of judges asked my client how much she sought in costs.
She was stupified and could not answer.
I sought leave of the court to represent my client as Amicus Curaie in order to make submissions on costs. This required consent of the court, and an order to address the court given that I wasn’t robed.
The Court of Appeal accepted my request to appear as Amicus Curaie and I obtained an order for costs on behalf of my client. This was all done pro bono for my client.
Amicus Curaie is a powerful function where you can assist your client and the court who have competing roles and can be adversarial to each other. Keep in mind, that you cannot overstep the boundaries of your client’s instructions and keep your limitations to your role only as friend of the court. The courts are always extremely accepting of this role and play great deference to it.
