GUIDES
A review for litigation checks whether an existing capacity opinion answers the correct decision, applies the right test and explains its evidence, support, reasoning and limits.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889.
Copywright © 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.
A review for litigation checks whether an existing capacity opinion answers the correct decision, applies the right test and explains its evidence, support, reasoning and limits. The sections below explain the evidence, practical steps and limits of the assessment or process.
A litigation-ready capacity review is a structured critique of an existing capacity assessment, prepared in the knowledge that it will be read by opposing experts, counsel and the court. It should include verification that the correct legal test was applied to the correct decision, a comparison of the evidence available against the evidence actually considered, analysis of whether practicable support steps were taken and recorded, scrutiny of the causal link reasoning, an opinion on whether the conclusion follows from the findings, and clear identification of what any replacement assessment would need to address. This guide works through each element in turn.
Define the review question before starting: for example, whether an earlier litigation-capacity opinion assessed the proceedings as a whole, or whether an opinion about another decision is reliable. Identify the original decision and date and the legal framework. A review for use in litigation is not necessarily a review of capacity to litigate.
For a report applying the Mental Capacity Act, check the presumption of capacity, practicable support, the relevant information, evidence of each functional ability and the causal explanation for any inability. A will-capacity report requires its own legal test. The reviewer should identify the framework and material date before judging the reasoning, rather than importing one checklist into every report.
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.
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.
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.
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.
A review should identify the original instruction and decision, report and documents reviewed, applicable test and each material concern with page references. Distinguish an error of method, missing evidence, a reasonable difference of opinion and a change since assessment. Explain what further records or direct assessment could resolve the concern. State clearly if the reviewer has not assessed the person or cannot answer their current capacity.
A critical review should show exactly which findings are supported, what is missing and whether further evidence or a fresh assessment is proportionate. An opinion on report quality is distinct from an assessment of the person. Follow the expert-evidence rules and directions for the actual proceedings.
No. A diagnosis alone does not establish incapacity. For a Mental Capacity Act decision, provide practicable support, examine understanding, retention, use or weighing and communication, then explain whether any inability is caused by an impairment or disturbance of mind or brain. The conclusion is specific to the decision and time.
Provide the report, instructions, supporting records and any relevant material not originally considered where lawfully available. A report-only review can identify internal errors or omissions, but its conclusions must reflect that limited scope. A wider file permits a fuller comparison of the evidence and reasoning; neither route automatically establishes the person’s capacity now.
Commission a review when a report will be relied on in proceedings and its conclusion is contested, when an opposing party has served capacity evidence that needs testing, or before deciding whether to seek the court's permission for replacement expert evidence under CPR Part 35. A conclusion about one decision does not establish capacity for another.
The related pages below explain connected decisions, evidence requirements and legal processes.
Before seeking a report, write down the exact decision, relevant date, reason for concern and intended use. Gather the documents that explain the real options and any communication needs. Check any required form or court direction, agree the scope and total fee, and clarify how missing evidence or further questions will be handled.
A GOOD PLACE TO START
Tell us what is happening and what you need help with. We will listen, explain the options and help you find the right starting point.