GUIDES
A critical review examines the quality and limits of an existing capacity assessment. It does not automatically replace a direct assessment or determine the person’s capacity now.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889.
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A critical review examines the quality and limits of an existing capacity assessment. It does not automatically replace a direct assessment or determine the person’s capacity now. The sections below explain the evidence, practical steps and limits of the assessment or process.
A critical review of a mental capacity assessment is an independent expert examination of an existing capacity report, testing whether its conclusions can safely be relied on. The reviewer checks that the correct legal test was applied to the correct decision, that the evidence available was actually considered, that practicable support steps were taken and recorded, that the reasoning connects the impairment to the inability to decide, and that the conclusion follows from the findings. The output is a clear opinion on the report's strengths and vulnerabilities, and on whether a replacement assessment is needed. This guide explains when critical reviews are used and what they deliver.
The reviewer examines an existing opinion rather than beginning with a fresh assumption about the person. Agree whether the task is a limited review of the report’s internal reasoning or a wider review of the underlying evidence, and whether any direct reassessment is included. State that scope so the reader knows what the review can establish.
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.
Relevant information belongs to the decision assessed in the original report. A residence report, property opinion, will assessment and litigation-capacity report require different analysis. Check whether the report identified the salient facts, real options and consequences for its own question. Litigation documents matter only where they illuminate that question or the intended use of the review.
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 original report assessed use or weighing as well as understanding, retention and communication where the Mental Capacity Act applies. Identify the evidence relied on, support offered, any impairment and the claimed causal link. A reviewer should not infer an inability from disagreement with the person’s choice, or replace missing observations with assumptions.
Look for the wrong legal test, an undefined decision, generic relevant information, unsupported causation or a conclusion that goes beyond the evidence. Capacity to conduct proceedings is distinct from capacity for the subject of the dispute. Record pressure and safeguarding concerns separately from any finding of functional inability.
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.
A critical review is most useful where a report's conclusion is doing real work in proceedings or a dispute and there is genuine doubt about its reasoning: before deciding whether to rely on it, challenge it, or seek the court's permission for replacement evidence. 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.
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