GUIDES
Challenge a capacity report by identifying a material problem with its decision, legal test, evidence, support or reasoning. Seek proportionate clarification first and use the applicable court rules before obtaining or relying on further expert evidence.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889.
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Challenge a capacity report by identifying a material problem with its decision, legal test, evidence, support or reasoning. Seek proportionate clarification first and use the applicable court rules before obtaining or relying on further expert evidence. This guide covers the relevant evidence, support, process and limits in England and Wales.
Challenge a capacity report by identifying a material problem with its decision, legal test, evidence, support or reasoning. Seek proportionate clarification first and use the applicable court rules before obtaining or relying on further expert evidence. The remedy depends on what the gap changes: a focused explanation or correction may suffice, while a different question or material change may require further assessment.
Review the decision and relevant time the report was instructed to address. Check the applicable legal test, sources, support and reasoning. A critical review of a will, gift, residence or financial opinion does not automatically ask whether the person can conduct proceedings; litigation capacity is a separate question where it arises.
Start by presuming capacity and taking all practicable steps to support the person. An unwise decision does not by itself establish incapacity. For this decision at this time, assess whether the person can understand and retain the relevant information, use or weigh it and communicate a decision by any means. If an ability is absent, explain whether an impairment of, or disturbance in the functioning of, the mind or brain causes that inability. Short retention is enough if it enables the decision.
Identify the information relevant to the decision actually assessed. For litigation, consider the properly framed proceedings as a whole with available legal advice and support; for other decisions, use their own material options and consequences. Check whether the report applies the correct test rather than importing a generic checklist.
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.
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.
Check whether the report explains the person’s own reasoning and each relevant ability, rather than only their ability to repeat information. For an MCA opinion, any inability must be causally linked to an impairment or disturbance. Disagreeing with the decision or the expert’s conclusion is not itself an evidential flaw.
Distinguish a problem in the legal test or evidence from risk, disagreement or vulnerability alone. Consider whether another report concerns the same decision, time and support before treating the conclusions as contradictory. Seek legal advice on the materiality of the concern and any further expert evidence.
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.
A critical review should identify a material issue and explain how it affects the opinion. Clarification may resolve a gap; changed circumstances or a substantive methodological problem may require further assessment. The court evaluates expert evidence and decides the legal issues.
No. A diagnosis does not establish lack of capacity. For a decision under the Mental Capacity Act, consider the relevant information and practicable support, then assess understanding, retention, use or weighing and communication by any means. Any inability must be caused by an impairment of, or disturbance in the functioning of, the mind or brain. Will-making has its own legal test.
Start with the letter of instruction, the report itself, the records the assessor states they reviewed, attendance notes and any contemporaneous evidence of the person's actual decision-making. Gaps between the material that was available and the material the assessor actually considered are one of the most productive lines of challenge.
A critical review may help where a material gap, conflicting evidence or an incorrect test affects an important opinion. Ask focused questions and follow the court’s directions where relevant. Different conclusions about different decisions or times are not necessarily inconsistent.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Identify a focused question that could affect the opinion. In civil proceedings, use CPR 35.6 within its limits or seek directions; a further expert report may need permission and should not be commissioned simply to obtain a preferred answer.
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