Litigation Mental Capacity Assessment
What is Litigation Capacity?
Litigation is the process of taking legal action. A Litigation Mental Capacity Assessment is completed to determine whether a person has the mental capacity to take legal action or whether they require the assistance of a litigation friend to assist them and make decisions on their behalf during a court case. Where a person lacks the mental capacity to take legal action, a vulnerable adult or child, they become a protected party and the case can’t continue until a litigation friend has been appointed. A litigation friend is simply a person instructed to make decisions for adults or children, in court cases, where they can’t make decisions for themselves.
We are instructed by solicitors who require robust, high quality Mental Capacity Assessments. As consultant Social Workers, we are well placed to complete Mental Capacity Assessments for you concerning a person’s ability to take legal action. We have a significant amount of experience as practitioners and have completed hundreds of Mental Capacity Assessments since 2009. We are instructed to complete Litigation Mental Capacity Assessments ahead of, or during, legal proceedings.
As well as being experienced litigation capacity assessor for matters relating to adults, we are also experienced in matters relating to children and young people. That includes litigation matters that young people may be involved in, including making an application to the First-Tier Tribunal (Special Educational Needs and Disabilities) to appeal an Education, Health and Care Plan.
What is the test for litigation capacity?
Unlike some other Mental Capacity Assessments, the test to determine whether a person has litigation capacity is not solely the test within the Mental Capacity Act. The fundamental principles are although the question that needs to be tested is very specific and is contained within case law from 2002 and 2014. The test, when using the correct question, identifies whether the person can conduct the whole of the proceedings rather than just a single aspect such as agreeing to any financial settlement. As registered Social Workers, we keep up to date with any changes in case law and any changes there may be in the test for capacity to litigate. That way, you can always be assured of a thorough assessment that uses the correct test.
The assessment process itself involves meeting the person (either face-to-face or virtually) and consulting their network of support. As well as applying the correct test for capacity, we adopt best practice principles and adhere to the professional standard of the professional registration and membership bodies we belong to. They are Social Work England, Social Care Wales and the British Association of Social Workers.
How long will the assessment take?
Once instructed, we aim to complete or Mental Capacity reports within 10 days with the actual assessment visit usually lasting between 1-2 hours. If, however you require an assessment completed urgently, please let us know and we will do everything we can to meet your specific timescales. If you require a litigation capacity certificate, rather than a full report, we can usually provide it within 3 days.
What happens if a person is assessed as lacking capacity?
If the outcome of the assessment is that the person lacks the mental capacity to make the decision, a litigation friend will be appointed by the court to make decisions during the course of the court case. The Mental Capacity Assessment will document the person’s wishes in relation to the proceedings. It is possible that the proceedings are about a financial award. If this is the case, we can be instructed to complete a Mental Capacity Assessment that includes a Mental Capacity Assessment to Manage Finances. As well as a full report, we will also complete a certificate as to capacity to conduct proceedings, which is a summary of my findings.
