Capacity to Litigate

Mental Capacity Assessment for Litigation

What is a Capacity to Litigate Assessment?

A Capacity to Litigate Assessment is a way of ensuring a person has the capability to take part in and follow legal proceedings.

What does a capacity to litigate assessment include?

Our Capacity to Litigate Assessments include all necessary preparatory work and organising the technical side of a remote assessment via video link, a Capacity to Litigate Assessment, a written report and reading time. The assessment will cover the specific details of the case and will always include a financial affairs assessment. If necessary, our Assessors are able to attend Court, when able to do so, for an additional charge.

What case law do you use?

The Mental Capacity Act (2005) does not cover Capacity to Litigate, therefore the legal test of Dunhill v Burgin (2014) is used. This case law is our benchmark and we also keep up to date with any new and relevant case law.

What information do you need from me?

We request information such as details of the legal matter being addressed. Financial information is required especially when a possible financial settlement is being discussed and medical conditions especially when looking at medical negligence cases. An Assessor can use this information to verify what is discussed during an assessment. It may help them to cover certain topics and will therefore allow them to set a suitable threshold of understanding.

Please contact us. We will provide you with a copy of our bespoke referral form, which we will happily talk through with you.

What happens in the capacity assessment?

The assessment will take place via video link through the use of a smartphone, tablet, laptop or computer with webcam. This can take place in the client’s home or at a location where they feel comfortable. It is not a test and we believe in fostering a comfortable environment for all our assessments.It is also common for assessments to take place at a solicitor’s office or be arranged in conjunction with solicitors for litigation cases.

Whilst the assessment will potentially cover complex legal matters our Assessor will ensure appropriate language and communication methods are used. This is to prevent the client feeling like they are being tested. It may be appropriate to read through relevant documents, discuss problem solving or number manipulation.

The assessment will take approximately one hour.

Why is a capacity to litigate assessment necessary?

In litigation cases, a Capacity Assessment can be vital to protect vulnerable clients. They can ensure the correct needs have been identified and as a result assist that person through the case.

A Capacity to Litigate Assessment should ascertain whether a person is capable of understanding, retaining, weighing up and communicating information throughout the ongoing case. It also provides a pause in what can be an influx of information and voices. Also it ensures the client has the opportunity to have their voice heard.

What happens if the client lacks capacity to litigate?

With support of a litigation friend it is likely the court case will then be able to continue. The Capacity Assessment will then also be a chance to express your wishes and ensure they are heard.

To discuss arranging a Capacity to Litigate Assessment, please contact us.