chapter  10
17 Pages

Capacity to enter into proceedings/ to litigate

ByTracey Ryan-Morgan, Richard Stead

The issue of capacity confronts judges, lawyers and clinicians in numerous types of cases before the court. A person who lacks capacity, within the meaning of the Mental Capacity Act, to conduct proceedings is known as “a protected party”. The lawyer’s or judge’s concerns as to the capacity of a party may well lead to an assessment by a clinician who is most suited to make the assessment of capacity to litigate, and/or to the obtaining of evidence from someone who knows the individual concerned. Clinicians often get asked to assess a patient’s capacity to litigate in the context of personal injury claims or family law proceedings. It is crucial to understand the legal context for such assessments and equally helpful to grasp the rationale behind the assessment requirement. The assessment comprised both structured clinical interview with specific focus on the legal test for litigation capacity, and neuropsychometric testing of brain function as well as observation of behaviours.