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Mental capacity assessments for litigation and the Court of Protection.
Independent assessments of capacity to litigate, to manage property and affairs, to make welfare decisions and to make a lasting power of attorney. Send the decision and your deadline. We take legally aided cases. The search is free, and nothing is agreed until you instruct.
What you get for a capacity case.
Tell us the decision and the court.
For your deadline
You compare the experts who can assess your client by your deadline, with a CV, fee and availability for each. Reports usually take 1 to 2 weeks, or 2 to 3 days when urgent. Timescales are estimates and depend on expert availability, the appointment and receipt of the relevant records.
Assessment where your client is
The expert can see your client where they live, including a care home, or in hospital, or by video where that suits the question. A named case manager arranges the appointment.
Checked experts in each discipline
Our experts include psychiatrists, neurologists and psychologists, and GP experts where the medical records are central to the issue. We check experts for registration and insurance; for a legally aided case, the quotes come within the legal aid rates.
The test under the Mental Capacity Act 2005.
Tell us the decision the court has to consider: conducting the claim, settling it, managing property and affairs, making a welfare decision or making a lasting power of attorney. The expert assesses your client for that decision through the four abilities in s3(1).
- understand the information relevant to the decision
- retain that information
- use or weigh that information as part of making the decision
- communicate the decision
The inability must be because of an impairment of, or a disturbance in the functioning of, the mind or brain (s2(1)). A diagnosis on its own is not enough (s2(1) and (3)), and capacity is judged in relation to the decision or activity in question, not globally (Dunhill v Burgin [2014] UKSC 18, para 13).
Capacity to litigate.
The question is whether your client can conduct the claim they actually have.
The test is whether the party can understand the issues on which their consent or decision is likely to be necessary in the proceedings. The party is taken to have the help of such proper explanation from legal advisers and experts in other disciplines as the case may require (Masterman-Lister v Brutton, as quoted in Dunhill v Burgin, para 16).
It is judged against the claim or cause of action the party in fact has, not the claim as their lawyers have framed it (Dunhill, para 18). A capacity to litigate assessment should therefore deal with the real issues in your case, including any settlement. If a settlement is close, put the date in the enquiry.
Protected parties and litigation friends.
If your client lacks capacity to conduct the proceedings, CPR Part 21 applies.
In Dunhill v Burgin the claimant lacked capacity, the settlement had not been approved under CPR 21.10(1), and the consent order was set aside (paras 20 and 34). In family proceedings, too, a protected party must have a litigation friend (FPR 15.2). Where no one else can act, the Official Solicitor’s certificate as to capacity to conduct proceedings helps the Official Solicitor decide whether to accept appointment.
Property and affairs, welfare and lasting powers of attorney.
Property and affairs
Whether your client can manage their property and affairs, where the Court of Protection may decide for them or appoint a deputy (s16).
Personal welfare
Whether your client can make the particular welfare decision before the court, such as where to live or who to have contact with (ss16(1) and 17(1)).
Lasting power of attorney
Whether the donor had capacity when the LPA was made. An LPA gives an attorney authority to decide for the donor, including when the donor no longer has capacity (s9(1)).
Tell us which decision it is, and when it was or will be made.
Expert evidence in the Court of Protection.
No party may file or adduce expert evidence unless the court or a practice direction permits (Court of Protection Rules 2017, r15.5(1)). The expert’s duty is to help the court, and it overrides any obligation to whoever instructs or pays them (r15.4).
Tell us whether you need a report for an application, or evidence the court has already permitted, and the decision it concerns. Capacity to make a will has its own test: see testamentary capacity.
Across the UK.
We find experts for capacity cases in Scotland and Northern Ireland too. Each has its own law, so tell us where the person lives and which court is involved.
England and Wales
- Mental Capacity Act 2005: the presumption, the four abilities and decision-specific capacity
- CPR Part 21 and FPR Part 15 for protected parties
- Court of Protection Rules 2017 for expert evidence
Scotland
- Adults with Incapacity (Scotland) Act 2000. An adult is a person of 16 or over
- “Incapable” means incapable of acting, or of making, communicating, understanding or retaining the memory of decisions, by reason of mental disorder or of inability to communicate because of physical disability (s1(6))
- No intervention unless it will benefit the adult and the benefit cannot reasonably be achieved without it (s1(2))
Northern Ireland
- The Mental Capacity Act (Northern Ireland) 2016 is only partly in force, after a first phase in 2019
- Where a person can be detained under the Mental Health (Northern Ireland) Order 1986, that framework still applies
Questions about mental capacity evidence.
For anything else about your case, call us.
Call 0121 752 6061Does a diagnosis of dementia mean my client lacks capacity?
No. A diagnosis is not enough. The question is whether, because of it, your client cannot make the particular decision (Mental Capacity Act 2005, ss2 and 3). An unwise decision does not by itself show a lack of capacity (s1(4)).
Who can carry out a capacity assessment?
For court purposes, usually a doctor or a psychologist whose expertise fits the impairment. Our experts include psychiatrists, neurologists and psychologists, and GP experts where the medical records are central to the issue.
What is an independent capacity assessment?
An assessment by an expert outside your client’s treating team, instructed for the proceedings. The expert’s duty is to the court, whoever pays for the report.
Send the case. We find the experts.
- The type of caseFamily, personal injury, criminal, immigration, employment…
- The specialty, or the issuesIf you are not sure who you need, describe the medical questions
- The court or tribunalAnd any directions already made about expert evidence
- Your deadlineHearing, filing or limitation date
- How the case is fundedLegal aid, private, CFA or insurer
Send a case enquiry, obtain CVs and quotes in minutes
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Urgent case?0121 752 6061info@
You can also call us on 0121 752 6061.
Tell us your deadline.
We send you the CVs, fees and availability of experts who can meet it.