Mental Capacity Assessment
Capacity to Litigate Assessment
A capacity to litigate assessment is a decision-specific assessment of whether a person can understand, engage in and make decisions within legal proceedings, applying the Mental Capacity Act 2005. It is used where there is genuine doubt about whether someone can properly take part in a case, and produces the evidence the court or Official Solicitor needs, including, where required, the Certificate as to Capacity to Conduct Proceedings.
Court-ready assessments of capacity to conduct proceedings, including the official certificate where required.
At a glance
Decision
Conducting legal proceedings
Legal framework
Mental Capacity Act 2005, Masterman-Lister and CPR Part 21
Format
Face to face or remote
Report
Court-ready and peer reviewed
Coverage
England and Wales
£800 + VAT
Standard fee, certificate included where required
5 working days
Typical turnaround
England and Wales
Nationwide coverage
CPR Part 35
Court-ready reporting
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What is a mental capacity assessment?
A mental capacity assessment is a decision-specific and time-specific process used to determine whether a person can make a particular decision for themselves. Under the Mental Capacity Act 2005, the assessor considers whether the person can understand, retain, use or weigh the relevant information, and communicate their decision. A person can only be found to lack capacity where an impairment of, or disturbance in, the functioning of the mind or brain causes their inability to decide. It is not a general test of intelligence, memory or diagnosis, and every practicable step must first be taken to support the person to make the decision.
The decision concerns conducting the particular proceedings in question: whether the person can give instructions and make the decisions the case will require of them, with the benefit of legal advice.
Capacity is judged against the actual claim the person has, not the claim as it happens to be pleaded. A person may be able to conduct a straightforward matter while being unable to weigh a complex claim involving competing expert evidence and a substantial settlement.
An unwise decision is not the same as lacking capacity
A party may take a view on their case that their advisers would not take. The issue is whether the person can make the relevant decision, not whether others agree with it.
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When a capacity to litigate assessment is needed
A capacity to litigate assessment is usually needed when there is genuine doubt about whether a person can properly take part in legal proceedings. This often arises in personal injury, clinical negligence, divorce, family and other civil cases.
It commonly arises where there are concerns about brain injury, dementia, mental illness, learning disability, cognitive difficulty or fluctuating presentation. The issue is not whether the person seems vulnerable or has a diagnosis, but whether they can understand, engage in and make the specific decisions that the proceedings require.
Instructions are in doubt
A solicitor is concerned that their client cannot give reliable instructions on the issues the case will turn on.
CPR Part 21 is engaged
The question of whether the party is a protected party who needs a litigation friend has to be answered.
A settlement is in prospect
A settlement is being negotiated and the court may need to approve it, which requires evidence on capacity.
Brain injury or cognitive change
The person has an acquired brain injury, a neurological condition or a cognitive change since proceedings began.
The court raises the question
The court, the other side or the Official Solicitor has asked for the party's litigation capacity to be evidenced.
Family or Court of Protection proceedings
The person is a party to proceedings and their ability to participate and instruct is in question.
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What this assessment covers
This assessment addresses the person's capacity to conduct the particular proceedings in question. It is decision-specific: the assessor tests the actual case in front of the person, not a general impression. In line with the Mental Capacity Act 2005, and following Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889 and Dunhill v Burgin [2014] UKSC 18, the assessment considers whether the person can understand, retain, use or weigh the information relevant to the decisions the case will require of them, with the benefit of legal advice. That information typically includes:
What the proceedings are about, and what they are seeking to achieve by bringing or defending them
The main issues on which they will be asked to give instructions
The options open to them, including settling, continuing or discontinuing
The likely consequences of each option, including costs, risk and the possibility of losing
The role of their solicitor, and that they can seek and act on advice before deciding
What would happen if they could not conduct the case themselves, including the appointment of a litigation friend
The relevant information must be tailored
A modest, straightforward claim is not the same decision as a complex claim turning on competing expert evidence and a substantial settlement. The assessor identifies the information that is genuinely relevant to the proceedings in question.
1
The functional test
Capacity to litigate is assessed under the Mental Capacity Act 2005, applied to the specific proceedings in question. The functional test asks whether the person can:
Understand the information relevant to conducting the proceedings, including the issues, the advice and the decisions to be made
Retain that information long enough to make each decision
Use or weigh that information as part of making the decision
Communicate their decision by any means
2
Impairment and causation
The question is whether any impairment affects the person's ability to conduct these specific proceedings, not whether they have a diagnosis. Our reports show a clear chain of reasoning from impairment, to functional impact, to conclusion, and where required we complete the official Certificate as to Capacity to Conduct Proceedings as part of the same instruction.
Framework: Mental Capacity Act 2005 ss 1 to 3; CPR Part 21 on protected parties; Masterman-Lister v Brutton and Co [2002] EWCA Civ 1889. Reports prepared to CPR Part 35 standards.
For the framework in full, read our guide: what is capacity to conduct proceedings.
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The legal test we apply
Initial enquiry and triage
We gather the key details of the case, identify the proceedings and the decisions in question, and confirm whether the certificate is required. We also advise whether a standard or enhanced assessment is appropriate.
Quotation and booking
We provide a clear, upfront quotation including VAT and any travel costs, and arrange the assessment as quickly as possible.
Assessment appointment
A qualified assessor meets the person at home, in a care setting, in hospital or by secure video. The assessment is a supportive, structured conversation, taking practicable steps to help the person take part.
Report and certificate
We prepare a fully reasoned, CPR Part 35 compliant report and, where required, complete the Certificate as to Capacity to Conduct Proceedings as part of the same instruction. Each report is peer reviewed before release.
Secure delivery
The completed report and certificate are delivered securely, with clarification available for the instructing solicitor after delivery.
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Our process for capacity to litigate assessments
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How we support decision-making
The Mental Capacity Act 2005 requires that no one is treated as unable to make a decision unless all practicable steps to help them have been taken without success. That support is built into every assessment:
Plain language and real examples
Decisions are explained using the person's own circumstances and the decision actually in front of them, rather than abstract scenarios.
The right time and place
Appointments are arranged for when the person functions best, at home, in a care setting, in hospital or remotely.
A familiar person nearby
A relative, friend or carer can be close at hand where that reassures, while the assessment itself remains independent.
Communication adjustments
More time, information broken into stages, and written notes or aids where they help the person express a view.
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Evidence we review
With consent, the assessor grounds the assessment in the person's real circumstances. For a litigation capacity assessment this typically means reviewing:
Medical records
GP summaries, hospital letters, neuropsychology and any information about diagnosis or treatment that bears on decision-making.
The case papers
Pleadings, key correspondence and expert evidence, so the assessment addresses the decisions this case actually requires.
Attendance notes
The solicitor's record of how the person has engaged with advice and instructions to date.
Previous assessments
Earlier capacity assessments, cognitive testing or social care assessments, where these exist.
Care and support records
Care plans and daily notes that describe how the person manages complex information day to day.
Accounts from people who know the person
Observations from family, friends and professionals about how the person handles decisions in practice.
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Inside a Nellie Supports report
Every report shows a clear chain of reasoning, from impairment to functional impact to the conclusion on capacity, so it can be understood and scrutinised.
Instruction and the specific proceedings assessed
Documents and records reviewed
Relevant information for conducting the proceedings
Practicable steps taken to support participation
Impairment and its functional impact
Analysis against the Mental Capacity Act 2005 test
Conclusion, professional opinion and certificate where required
Limitations, declarations and CPR Part 35 matters
Assessment option | Suitable for | What is included |
|---|---|---|
Standard Assessment | Most litigation capacity questions | |
Enhanced Assessment (EMCA) | Contested, high-value or high-risk matters | |
Court-specific instruction | Court of Protection or other proceedings |
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For solicitors, deputies and other professionals
Instruction is straightforward and the evidential standard is consistent whichever decision is being assessed:
Scope confirmed in writing
The decisions to be assessed, the fixed fee and the timescale are confirmed in writing before instruction.
A traceable evidential line
Evidence, analysis and conclusion are set out in a structure a court, bank or public body can scrutinise.
Peer review as standard
A second qualified professional reviews every report before it leaves the practice.
Follow-up clarification
Clarification for instructing parties is included after the report is delivered.
Standard Assessment
£800 + VAT
- Decision-specific capacity to litigate assessment
- Certificate as to Capacity to Conduct Proceedings where required
- CPR Part 35 compliant expert report
- MoCA where appropriate
Suitable for most cases where litigation capacity is in question.
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Enhanced Assessment
£3,500 + VAT
- Extended, multi-layered assessment process
- Targeted psychometric input where appropriate
- Broader evidential framework and vulnerability assessment
- CPR Part 35-ready reporting for disputed or Court of Protection matters
For complex, disputed or Court of Protection matters.
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Standard or Enhanced, which level of evidence does your case need?
For many cases a standard assessment provides clear, court-ready evidence and, where required, the official certificate. For complex, disputed or Court of Protection matters, an enhanced assessment provides a deeper evidential foundation.
For families
One fixed fee, stated before instruction and confirmed in writing, with no surprises. The assessment is arranged around the person, at home, in a care setting, in hospital or remotely, and your report is delivered within 5 working days of the assessment visit, in a form solicitors and the court can rely on.
For professionals
A permanent, employed multidisciplinary team, not an ad hoc associate or referral-panel model: Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Every report is peer reviewed by a second qualified professional and structured for scrutiny, with reports relied on in the Court of Protection, the Family Court and the Court of Appeal.
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Why choose Nellie Supports for your mental capacity assessment
England and Wales' largest identified specialist private social work and mental capacity assessment practice, with over 11,000 formal assessments and reports completed by a permanent full-time multidisciplinary team.
Why solicitors and litigation teams choose Nellie Supports
Litigation specialists
Decision-specific assessments applying the legal test to the proceedings, not a general clinical opinion.
The certificate included
Where required, the official Certificate as to Capacity to Conduct Proceedings is completed as part of the same instruction, at no additional cost.
CPR Part 35 ready
A fully reasoned expert report prepared for use in proceedings.
A clear chain of reasoning
From impairment, to functional impact, to conclusion, so the opinion can be tested.
Therapeutic and supportive
The assessment supports the person to take part as fully as possible, rather than testing to catch them out.
Independent and balanced
We do not work to a predetermined outcome. An independent report is more likely to withstand challenge.
The situation
A solicitor acting in a clinical negligence claim was concerned that their client, who had a cognitive impairment following a serious illness, might not be able to give reliable instructions or make decisions about the case. They instructed Nellie Supports to assess the client's capacity to conduct the proceedings.
The assessment
The assessment was carried out as a supportive, structured conversation, applying the Mental Capacity Act 2005 to the specific decisions the litigation required, from understanding the issues to weighing advice about how the case should proceed. Cognitive screening was used to help evidence the underlying impairment.
The outcome
The assessment concluded that the client could not, at that time, use and weigh the information needed to conduct the proceedings, and the report set out clear reasoning for that view. Where a person lacks litigation capacity, the case can continue with a litigation friend, and the Certificate as to Capacity to Conduct Proceedings was completed as part of the same instruction.
This is an illustrative example, drawn from the common features of the litigation capacity cases we assess. It does not describe any individual client.
How this works in practice
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Capacity to litigate FAQs
What is capacity to litigate?
It is whether a person can understand, engage in and make decisions within legal proceedings. The issue is not whether they seem vulnerable or have a diagnosis, but whether they can conduct the specific proceedings in question.
Do you complete the Certificate as to Capacity to Conduct Proceedings?
Yes. Where the court or Official Solicitor requires it, we complete the official certificate as part of the same instruction, at no additional cost. We also provide a fuller, CPR Part 35 compliant expert report to support the opinion.
Is a diagnosis required?
No. What matters is whether an impairment affects the person's ability to conduct the proceedings. Where there is no formal diagnosis, cognitive screening such as the MoCA can help evidence an impairment or disturbance in the functioning of the mind or brain.
What happens if the person lacks capacity to litigate?
The proceedings do not stop. Where a person lacks litigation capacity, the case can continue with a litigation friend acting on their behalf, and our report and certificate provide the evidence the court needs.
Can capacity to litigate change during a case?
Yes. Capacity can fluctuate, and it is decision-specific and time-specific. A person may have capacity for some decisions but not others, or their capacity may change as the case develops, which is why the assessment relates to the specific decisions at the relevant time.
Will you provide a report that supports our case?
No. Our role is an independent, objective assessment. We do not work to a predetermined outcome. An independent, well-reasoned report is more likely to withstand scrutiny.
Where do you cover?
Assessments are carried out across England and Wales, at home, in care settings, in hospital or remotely where appropriate. Travel is charged at £40 per hour and confirmed before booking.
Who will carry out the assessment?
A registered professional from our permanent, employed team, which includes Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Every report is peer reviewed by a second qualified professional before delivery.
What is capacity to conduct proceedings?
The decision, the test and who assesses it
Relevant information for litigation capacity
What the person needs to understand
Protected parties and litigation friends explained
How proceedings continue where a person lacks capacity
Evidence needed for a litigation capacity report
What strengthens the assessment and the report
Court-ready capacity to litigate assessments
What makes a report stand up in proceedings
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Litigation capacity guides
Personal injury mental capacity
Decision-specific capacity evidence for personal injury and clinical negligence claims.
Capacity to Manage Finances
Independent, decision-specific assessment of capacity to manage money, property and financial affairs.
COP3 mental capacity assessment
For Court of Protection deputyship applications.
Other assessment types
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Book a capacity to litigate assessment
Tell us about the proceedings and the decision in question and we will confirm whether a standard or enhanced assessment is right, whether the certificate is needed, the fee, and the earliest appointment.
Written by Ben Slater, Founder and Managing Director, Nellie Supports. Read our editorial policy.