profile_kate_mckinlay_pi1[1]By Kate McKinlay

PI practitioners are not safe from capacity considerations. With an aging population and an increasing population of adults with learning disabilities, queries around capacity, whilst not quite ubiquitous yet, is nonetheless becoming an integral part of a PI practitioner’s essential knowledge.  The only problem therefore being that in fact most of us know very little about it.  For example that it is not a binary matter – a person can have capacity for one type of decision but not for another.  In the PI arena we are most likely to be concerned with capacity to litigate but practitioners should be aware that they may also become embroiled in other questions about capacity for example in relation to welfare issues and/or the management of property and affairs.

Given that “Any step taken before a child or protected party has a litigation friend shall be of no effect, unless the court orders otherwise (CPR r21.3(4).”, it is in our interests to ensure that we as legal representatives are ahead of the game when it comes to assessing our client’s capacity.

Whilst NB Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889 remains the seminal case on capacity to litigate, a working knowledge of the relevant parts of the Mental Capacity Act 2005, which predates Masterman, should now form part of every PI practitioner’s essential toolkit.

So… for those who are short of knowledge and short of time here follows a rough and ready guide to the Mental Capacity Act and its key principles.


  • A person is assumed to have capacity unless it is established that he/she lacks capacity to make the decision in hand (s. 1(1) (in PI case this will usually be the capacity to litigate – see below) – this is a useful backstop position.
  • A person must not be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success (s.1 (2)) – when assessing capacity talk to relatives, choose a relaxed environment, take your time, use simple language – whatever it takes to help your client to make a relevant decision themselves
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision (s.1 (3)) – just because they reject your advice does not mean they lack capacity!
  • A person lacks capacity to make a decision if at the material time he is unable to make a decision for himself in relation to the matter, because of an impairment of, or a disturbance in the functioning of the mind or brain (s.2).   This is often perceived as a two part test – diagnostic and functional – diagnostic being the identification of a mental disorder/learning disability and function being a consideration of the effect of this disorder/disability on his ability to make the decision at the time that it needs to be made) – causation is a key part in the assessment of capacity.

It is part of the role of any professional acting on behalf of an individual to assess their client’s capacity to make the relevant decision at the time it needs to be made. Usually there will be no doubt but Section 3 of the Act provides the framework for identifying a lack of capacity. Any one or more of the following will amount to an inability to make a decision for oneself:-

  • An inability to understand the information relevant to the decision
  • An inability to retain that information
  • An ability to use or weigh that information as part of the process of making the decision, or
  • An inability to communicate his decision (whether by talking, using sign language or any other means)

If therefore a professional has any concerns whatsoever as to any of these competencies, it is incumbent upon them to obtain some psychiatric evidence as to the Claimant’s capacity to litigate.

Finally please note that:-

-capacity is always time and subject specific

– if a person can be helped by friends or family ( e.g. with communication, retention, further explanation) to make the decision successfully they will still be regarded as having capacity.

-in order to establish a lack of capacity an assessment by an expert will usually be necessary (although not essential e.g. in cases where a party is paranoid and refuses to engage with professionals)

When however, it is established that a person lacks capacity to litigate; the following must occur:-

  • A suitable litigation friend must be appointed, it can be a family member provided they at all times act in P’s best interests
  • As a last resort the Official Solicitor will act provided that his costs are indemnified and there are no other suitable and willing candidates.
  • Any live proceedings must be stayed until such a time as a litigation friend is appointed
  • That person will be known as ‘the protected party’.Kate McKinlay
    Specialist in mental capacity matters

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