Capacity to Litigate Assessment

What is a capacity to litigate assessment?
A capacity to litigate assessment is a way of ensuring that a person has the capability to partake and follow legal proceedings.

What is included in the capacity to litigate assessment?
Our capacity to litigate assessments include one visit to the client’s home, an assessment, a written report, travel and reading time. The assessment will cover the specific details of the case and will always include a financial affairs assessment. At an additional charge our assessors are also able to attend court if it is deemed necessary to do so.

What case law do you use?
Capacity to litigate is not covered by the Mental Capacity Act (2005) and therefore requires the legal test of Dunhill v Burgin (2014). This case law is our benchmark and we keep up to date with any new and relevant case law from which we can draw upon.

What information do you need from me?
We will request information such as details of the legal matter being addressed, financial information especially when a possible financial settlement is being discussed and medical conditions especially when looking at medical negligence cases. An assessor can use this information to verify what is discussed during an assessment, it may help them to cover certain topics and will allow them to set a suitable threshold of understanding.

Contact us and we will provide you with a copy of our bespoke referral form, which we will happily talk through with you.

What happens in the assessment?
We believe in fostering a comfortable environment for all our assessments and as such the majority take place at the client’s home. For litigation cases it is also common for the assessments to take place at a solicitor’s office or to be arranged in conjunction with solicitors.

Whilst the assessment will potentially cover complex legal matters our assessor will ensure appropriate language and communication methods are used and will avoid the client feeling like they are being tested. It may be appropriate to read through relevant documents, discuss problem solving or number manipulation.

Why is a capacity to litigate assessment necessary?
In litigation cases, a capacity assessment can be vital to protect vulnerable people and ensure that the correct needs have been identified to assist that person through the case.

A capacity to litigate assessment should ascertain whether a person is capable of understanding, retaining, weighing up and communicating information throughout the ongoing case. It also provides a pause in what can be an influx of information and voices and allows the client to have their voice heard.

What happens if I lack capacity to litigate?
The court case can continue but you will be supported by a litigation friend who can assist you throughout the process. The capacity assessment will then also be a chance to express your wishes and can be used to ensure that your wishes are heard.

To discuss arranging a capacity to litigate assessment with TSF please contact us.