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Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Civil Procedure Rules, Part 35: Experts and Assessors. Available at: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35
Copywright
Copyright © 2026 Nellie Supports Ltd. All rights reserved.
This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd.
This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms.
Common flaws in mental capacity reports
Mental capacity reports fail for a predictable set of flaws: the wrong decision assessed, or capacity treated as global rather than decision-specific; the relevant information for the decision never identified; no record of the practicable steps taken to support the person; conclusions resting on diagnosis rather than functional ability; no causal link explained between the impairment and the inability to decide; evidence listed but never analysed; and internal inconsistency between the findings and the conclusion. Any one of these can sink a report under scrutiny. This guide describes each flaw and how a properly structured assessment avoids them.
Start with the evidence the decision actually requires
Evidence should be gathered around the real decision, not around a generic view of capacity. In this context, the practical question is whether the person can conduct the identified proceedings, either through solicitors or as a litigant in person. The strongest reports show what information was available, what the person was asked, what support was provided and how the conclusion was reached.
Apply the Mental Capacity Act test to this decision
The Mental Capacity Act 2005 requires a structured approach. The person must be presumed to have capacity unless lack of capacity is established. They must be supported to make the decision where practicable, and an unwise decision is not enough on its own. The assessment then asks whether an impairment of, or disturbance in the functioning of, the mind or brain causes the person to be unable to make this decision.
Identify the relevant information
For this topic, relevant information commonly includes the nature of the proceedings, the issues in dispute, the person’s role, the need to give instructions, weigh advice, understand settlement or risk, and make decisions about the litigation as a whole. The relevant information should be tailored to the person’s actual circumstances. It should not be copied from a generic template if the person’s options, risks or legal context are different.
Gather evidence before drawing conclusions
The assessment is stronger when the evidence is organised before the conclusion is reached. Useful evidence may include the letter of instruction, pleadings or application documents, solicitor attendance notes, expert evidence, court orders, witness statements and records of the person’s instructions. Where records are missing, contradictory or out of date, the report should say so rather than overstate the certainty of the opinion.
Record practicable steps and communication support
The person should be given a meaningful opportunity to make the decision. This may involve simple language, written summaries, visual aids, additional time, breaks, support with hearing or sight, an interpreter, a familiar setting or a carefully timed appointment. The report should explain what support was tried and whether it helped.
Analyse use and weigh, not just understanding
Many capacity disputes turn on whether the person can use or weigh information, not whether they can repeat it. The assessor should consider how the person reasons through benefits, risks, alternatives and consequences. For litigation Critical Review of a Mental Capacity Assessment, this means looking at the person’s own explanation and whether any impairment prevents them from weighing the material information.
Consider risk, pressure and vulnerability carefully
Risk features should be recorded without turning them into shortcuts. Common issues in this area include assessing only one isolated step, failing to identify the actual proceedings, confusing litigation capacity with subject-matter capacity, and giving a conclusion without explaining functional causation. The assessor should distinguish vulnerability, disagreement, family conflict and safeguarding concerns from evidence that the person is unable to make the decision.
What a strong report should contain
A strong report should include the instruction, the specific decision, the legal framework, the relevant information, evidence reviewed, practicable steps, direct assessment findings, functional analysis, causation and a clear conclusion. It should also explain any limitations, such as missing evidence, refusal to engage, fluctuating presentation or the need for further legal advice.
Key takeaway
Litigation capacity is assessed by reference to the proceedings as a whole. The report must be clear enough for solicitors and the court to understand the reasoning. The safest approach is disciplined and evidence-led: define the decision, tailor the relevant information, support the person, apply the functional test and explain the reasoning clearly.
Frequently asked questions
Does a diagnosis automatically mean someone lacks capacity?
No. A diagnosis may explain why capacity is in doubt, but it does not answer the legal question. The assessment must still consider the specific decision, the relevant information, the support provided and whether the person can understand, retain, use or weigh that information and communicate a decision.
What evidence is useful for Litigation Critical Review of a Mental Capacity Assessment?
Compare the report against its own file: the instruction, the records cited and the records that existed at the time. Flaws usually surface in the gaps: material not reviewed, support steps not recorded, or findings that do not actually support the stated conclusion.
When is a formal assessment for Litigation Critical Review of a Mental Capacity Assessment useful?
A formal critical review is worthwhile when a potentially flawed report is doing real work: supporting an application, defending a decision or underpinning a settlement. Where the conclusion matters and the reasoning is doubtful, a review tells you whether to rely on it, challenge it or replace it.
Related mental capacity assessment pages
These internal links help readers move from this guide to the most relevant Nellie Supports service page, assessment option or legal framework page.
Suspect a flawed capacity report?
Nellie Supports provides litigation capacity assessments and critical reviews of existing reports across England and Wales, CPR Part 35 compliant and peer reviewed before delivery. Call 0333 987 5118 or visit the litigation capacity service page.