Mental Capacity Assessment
Mental Capacity Assessments for Personal Injury and Clinical Negligence Claims
A personal injury mental capacity assessment is a decision-specific assessment of whether a person can make a particular decision within a personal injury or clinical negligence claim, such as instructing a solicitor, conducting proceedings, or making decisions about settlement. It applies the Mental Capacity Act 2005 to the exact decision in question, linking any impairment to its functional impact on that decision.
Court-ready, decision-specific capacity assessments for high-value, complex and contested claims.
At a glance
Decision
Litigation, settlement and related decisions
Legal framework
Mental Capacity Act 2005, CPR Parts 21 and 35
Format
Face to face or remote
Report
Court-ready and peer reviewed
Coverage
England and Wales
£600 + VAT
Standard fee, stated before instruction
5 working days
Turnaround from assessment visit
England and Wales
Nationwide coverage
CPR Part 35
Court-ready reporting
Plain-English explanation
What is a personal injury capacity assessment?
A personal injury capacity assessment is a decision-specific and time-specific assessment of whether a person can make a particular decision within a claim. Under the Mental Capacity Act 2005 the assessor considers whether the person can understand, retain, use or weigh the information relevant to that decision, and communicate their choice. 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 test of intelligence, diagnosis or injury severity, and every practicable step must first be taken to support the person to decide for themselves.
In a personal injury or clinical negligence claim the decision is usually one of a defined set: instructing a solicitor, conducting the proceedings, agreeing a settlement, or managing the compensation afterwards. Each is a separate decision and each is assessed on its own terms.
Where a person is found to lack capacity to conduct proceedings they are a protected party under CPR Part 21, and the claim continues through a litigation friend. The claim does not stop. The decisions within it are made lawfully on the person's behalf.
An unwise decision is not the same as lacking capacity
A claimant is entitled to reject advice, accept an offer others would refuse, or take a risk their legal team would not. The question is whether the person can make the decision, not whether it is the decision anyone else would have made.
Common situations
When mental capacity becomes an issue in a claim
In many personal injury and clinical negligence cases, concerns about mental capacity arise where there is cognitive impairment, brain injury, psychological trauma or vulnerability. These concerns are not always obvious at the outset, but can become critical as the claim progresses, particularly when key legal decisions need to be made.
Capacity may need to be assessed where there are questions about whether a person can instruct their solicitor, understand the nature of the proceedings, or make informed decisions about settlement, rehabilitation or financial matters. Because capacity is both decision-specific and time-specific, a clear, structured assessment is essential to avoid delay, dispute or increased scrutiny from the court or opposing parties.
Doubt about instructing a solicitor
The legal team is unsure whether the client can give valid instructions, understand advice or hold a consistent position.
Brain injury or cognitive impairment
The injury, or the treatment following it, has affected memory, reasoning, insight or executive function.
Approaching settlement
A Part 36 offer, a schedule of loss or a round-table meeting requires a decision the client may not be able to make.
Protected party status in question
The court, the other side or a proposed litigation friend needs evidence on whether CPR Part 21 applies.
Contested or high-value claim
Capacity is disputed, expert views differ, or the value of the claim means the evidence will be examined closely.
Compensation and deputyship
A damages award is anticipated and there are questions about whether the person can manage it, or whether a Court of Protection deputy is needed.
Decision-specific content
What this assessment covers
This assessment addresses the person's capacity to make the specific decision raised in the claim. It is decision-specific and time-specific: the assessor tests the actual decision, not a general impression of the person. In line with the Mental Capacity Act 2005 the assessment considers whether the person can understand, retain, use or weigh the information relevant to that decision, and communicate their choice. For litigation and settlement decisions the relevant information typically includes:
What the claim is about, who it is against and what it is seeking to recover
The role of the solicitor and the barrister, and what it means to give and to follow instructions
The main steps in the proceedings, and that the case may settle or may go to a hearing
The options available at each decision point, including accepting or rejecting an offer
The likely consequences of each option, including that a settlement is normally final
The risks of the claim, including costs, delay and the possibility of recovering nothing
The relevant information must match the decision
Capacity to instruct a solicitor is not the same as capacity to agree a settlement, and neither is the same as capacity to manage the compensation afterwards. The assessor identifies the information genuinely relevant to the decision actually in question, and assesses each decision separately.
Initial enquiry and triage
We gather key details, identify the decision or decisions to be assessed, clarify the legal context and consider complexity, so we can advise whether a standard or enhanced approach is right from the outset.
Quotation and booking
Once the scope is clear, we provide a transparent quotation including VAT and any travel costs. For complex or high-value cases we outline the stages of an enhanced assessment.
Assessment appointment
The assessment is carried out in a structured, person-centred way, as a focused decision-specific assessment or a broader enhanced process, face-to-face or remotely depending on the person's needs.
Report preparation and peer review
Findings are brought together into a clear report that applies the legal test to the decision, showing the chain of reasoning from impairment to functional impact to conclusion. Each report is reviewed internally by a second qualified professional.
Secure delivery
Completed reports are delivered securely by email within an agreed timeframe. Where required we provide clarification or minor amendments, and can support further stages of work in complex matters.
What happens next
Our process for personal injury capacity assessments
Supported decision-making
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
The right time and place
A familiar person nearby
Communication adjustments
Evidence base
Evidence we review
With consent, the assessor grounds the assessment in the person's real circumstances and in the papers already in the case. For a personal injury capacity assessment this typically means reviewing:
Medical and rehabilitation records
GP and hospital records, imaging, neuropsychology and rehabilitation notes bearing on impairment and its functional impact.
Expert reports already in the case
Condition and prognosis reports, care reports and any existing capacity opinion, including one instructed by the other side.
Case papers
Pleadings, the schedule of loss, offers made and correspondence showing which decisions the person has actually faced.
Solicitor's attendance notes
A contemporaneous record of how instructions have been given, and whether the person's position has been consistent.
Care and support records
Care plans and daily notes describing how the person manages day to day, and what support is already in place.
Accounts from people who know the person
Observations from family, carers and case managers about decision-making before and since the injury.
Deliverable
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 decision assessed
Documents and records reviewed
Relevant information for the decision in question
Assessment method and practicable support provided
Impairment and its functional impact
Analysis against the Mental Capacity Act 2005 test
Conclusion and professional opinion
Limitations, declarations and CPR Part 35 matters where relevant
Assessment option | Suitable for | What is included |
|---|---|---|
Standard Assessment | Straightforward or lower-risk claims where dispute is unlikely | Single decision-specific assessment; Mental Capacity Act 2005 two-stage test applied in full; MoCA where appropriate; court-facing report structure; peer review by a second qualified professional |
Enhanced Assessment (EMCA) | Complex, high-value or contested claims | Extended multi-layered assessment process; targeted psychometric input; broader evidential framework including daily functioning; structured vulnerability and undue influence enquiry; CPR Part 35 ready reporting |
Court-specific instruction | Where the court or the parties set the format | Required questions, joint instruction terms or expert-report structure agreed at instruction |
Who we work with
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 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
£600 + VAT
- Decision-specific assessment aligned with the Mental Capacity Act 2005
- Structured interview and functional assessment
- MoCA where appropriate to support impairment evidence
- Clear link between findings and the legal test
- Clear, court-ready report
Suitable for straightforward or lower-risk cases where dispute is unlikely.
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Enhanced Assessment
£3,500 + VAT
- Extended, multi-layered assessment process
- MoCA and targeted psychometric input where appropriate
- Broader evidential framework including daily functioning and context
- Structured assessment of vulnerability and potential undue influence
- CPR Part 35-ready reporting where required
Designed for complex, high-value or contested claims.
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Transparent pricing
Standard or Enhanced, which level of evidence does your case need?
The same legal question can be assessed at different levels depending on the complexity of the case, the value of the claim and the likelihood of challenge. For lower-risk matters a standard assessment is proportionate; for complex, high-value or contested claims an enhanced assessment provides a deeper, more defensible evidential foundation.
For families
A clear fee, stated before instruction and confirmed in writing, with VAT and any travel set out up front. The assessment is arranged around the person, at home, in a care setting, in hospital or remotely, and the report is delivered within 5 working days of the assessment visit, in a form the legal team and the court can rely on.
For solicitors and litigation teams
A permanent, employed multidisciplinary team, not an ad hoc associate, contractor or referral-panel model: Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Reports are prepared to CPR Part 35 standards where expert evidence applies, peer reviewed by a second qualified professional, and structured so the reasoning can be tested.
Provider evidence
Why choose Nellie Supports for a personal injury 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, insurers and litigation teams choose Nellie Supports
Capacity specialists
Our assessors specialise exclusively in mental capacity assessment, applying the legal test to the specific decision, not a general clinical opinion.
Built for litigation
Structured, decision-specific reporting designed to support the progression of a claim and withstand scrutiny.
Standard and enhanced
The right depth of evidence for the case, from focused opinions to enhanced, multi-layered evaluations.
A clear chain of reasoning
From impairment, to functional impact, to the conclusion on capacity, so the opinion can be properly understood and tested.
CPR Part 35 ready
Reports prepared for use in litigation, including CPR Part 35 contexts where required.
Independent and balanced
We do not work to a predetermined outcome. An independent, well-reasoned report is more likely to withstand challenge.
The situation
Our client was living with an acquired brain injury following a road traffic accident. Their solicitor instructed Nellie Supports to assess two decisions in the personal injury claim: capacity to conduct the litigation, and capacity to agree a settlement.
The assessment
Because of the high value of the claim and the likelihood that the evidence would be closely scrutinised, an enhanced assessment was completed. It brought together a decision-specific assessment of each decision, cognitive screening and a broader evidential framework.
The outcome
The enhanced assessment provided clear evidence that the client did not have capacity for either decision. Where a claim is high in value and capacity is contested, and expert views may differ, this depth of assessment is what gives the evidence the reasoning and rigour to withstand close scrutiny.
This is an illustrative example, drawn from the common features of the personal injury capacity cases we assess. It does not describe any individual client.
How this works in practice
Frequently asked questions
Personal injury capacity FAQs
When is a mental capacity assessment needed in a personal injury claim?
Where there are concerns about whether a person can instruct a solicitor, conduct proceedings, make decisions about settlement, or manage compensation. This can arise at any stage, particularly where there is cognitive impairment, psychological difficulty or dispute about decision-making ability.
Do I need a neuropsychologist or psychiatrist for a capacity assessment?
Not necessarily. Those professionals assess cognitive or psychiatric impairment, but mental capacity is a legal test requiring structured, decision-specific analysis under the Mental Capacity Act 2005. Our assessors specialise exclusively in capacity assessment. What matters in litigation is whether the assessment clearly applies the legal test and links impairment to decision-making ability.
What is the difference between a standard and an enhanced assessment?
Both apply the same legal test and are decision-specific. A standard assessment suits straightforward, lower-risk matters. An enhanced assessment is for complex, high-value or disputed cases where the evidence may be scrutinised in detail, providing a broader evidential foundation and a more comprehensive report.
Can you assess more than one decision within the same case?
Yes. Many claims involve more than one capacity question, such as instructing a solicitor, conducting proceedings and making decisions about settlement. Each decision is assessed separately in line with the Mental Capacity Act 2005, and where complexity is higher this may form part of an enhanced assessment.
What happens if the person is found to lack capacity?
The report provides clear evidence to help determine the next steps. The claim does not stop, but decisions are made lawfully and in the person's best interests. This may involve a litigation friend conducting proceedings, or an application to the Court of Protection where longer-term decision-making, such as deputyship for compensation, is required.
Will you provide a report that supports our case?
No. Our role is an independent, objective assessment based on the evidence and the correct application of the legal test. We do not work to a predetermined outcome. Where the evidence supports the position being advanced we explain that clearly; where it does not, our conclusions reflect that. 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
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
CPR Part 35: a solicitor's guide to instructing a capacity expert
Instructing expert capacity evidence correctly
Supporting guidance
Litigation capacity guides
Capacity to litigate assessment
For conducting the proceedings themselves
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
Discuss the instruction
Book a personal injury capacity assessment
Tell us about the claim and the decision in question and we will confirm whether a standard or enhanced assessment is right, the fee, and the earliest appointment.
Written by Ben Slater, Founder and Managing Director, Nellie Supports. Read our editorial policy.