Litigation Capacity Psychologist Assessment By Expert Psychologists In London and Throughout the UK
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What is Litigation Capacity?
“Litigation capacity is defined as the ability of the litigant in the proceedings to conduct the proceedings and the ability to partake and follow the proceedings. A person may lack litigation capacity because they may suffer from one or more psychological impairments such as a learning disability, a mental illness, a neurodevelopmental disorder or a combination of these psychological conditions.”
How Are Litigation Capacity Assessments Carried Out?
Litigation capacity assessments are carried out by our expert witness psychologists. Our expert psychologists distinguish between the capacity to refuse treatment and capacity to conduct litigation. In short, the test for whether an individual has the mental capacity to refuse mental health treatment is whether they are a risk to themselves or anyone else. If an individual is not a risk to themselves or anyone else, they are likely to have the capacity to refuse treatment.
Litigation capacity, which is also known as the Capacity to conduct proceedings, is a somewhat different test. The test of litigation capacity relates to both conducting one’s own proceedings and conducting proceedings through solicitors.
Is Law Used to Define Mental Capacity?
The law used to define mental capacity continues to develop; the leading case is the case of Dunhill v Burgin (Nos 1 and 2)  UKSC 18.
How Is Capacity Defined Under the Mental Capacity Act 2005?
Capacity is defined by using the definition in the Mental Capacity Act 2005. Part 21 of the Civil Procedure Rules 1998 provides that a protected party must have a litigation friend to conduct proceedings on that party’s behalf. The litigation friend, rather than the protected party, is responsible for making decisions relating to how the proceedings are conducted.
The Mental Capacity Act 2005 provides:
Section 2 people who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter 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.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to –
(a) A person’s age or appearance, or
(b) A condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
(5) No power which person (“D”) may exercise under this Act –
(a) In relation to a person who lacks capacity, or
(b) Where D reasonably thinks that a person lacks capacity, is exercisable in relation to a person under 16
(6) Subsection (5) is subject to subsection 18 (3).
Section 3 inability to make decisions
(2) For the purposes of section 2, a person is unable to make a decision for himself if he is unable –
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or way that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(3) A person is not to be regarded as unable to understand information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(4) The fact that a person is able to retain information relevant to a decision for a short period only does not prevent him from being regarded as been able to make a decision.
(5) The information relevant to a decision includes information about the reasonably foreseeable consequences of-
(a) Deciding one way or other, or
(b) Failing to make the decision.
In short, there are two elements to the test of capacity:
(1) Is there an impairment of, or disturbance in the functioning of, the person’s mind or brain? and;
(2) Is the person unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, mind or brain?
What is the Test for Litigation Capacity?
"The tests for litigation capacity used by our expert psychologists’ determine whether an individual can conduct the proceedings we have been asked to consider. These proceedings might include housing repossession, civil or family proceedings. The test of litigation capacity is different from the test of fitness to plead and fitness to stand trial in criminal law. Our litigation capacity assessments do not intend to be an assessment of whether an individual can conduct other proceedings or make decisions in general."
The following factors are evaluated in a litigation capacity assessment:
(1) Whether the litigant knew about his or her chances of succeeding and the risk of an adverse cost order;
(2) Whether he or she could make the sort of decisions that arise in litigation;
(3) Whether he or she could conduct the proceedings by giving proper instructions and approving compromises;
(4) Whether the litigant could sanction a compromise, which might be assessed by considering whether he or she had insight into the compromise, and the ability to instruct his or her solicitors to advise them on it, and an understanding of their advice and the ability to weigh their advice.
When assessing whether a person has litigation capacity, our expert psychologist will have regard to the statutory principles set out in sections 1 (2), (3) and (4)Section 1 of the Mental Capacity Act 2005:
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not treated as unable to make a decision unless all practicable steps to help him do so have been taken without success.
(4) A person is not treated as unable to make a decision merely because he makes an unwise decision.
What is a Certificate of Capacity to Conduct Proceedings?
Once an assessment of litigation capacity has been carried out a certificate as to capacity to conduct proceedings may be issued by the expert psychologist. The certificate will state whether or not the person has the capacity to conduct legal proceedings without a litigation friend.
What is a Court of Protection 3 (CoP 3) Capacity Assessment Form?
The Court of Protection 3 (CoP3) form is the form which is required by the Court of Protection. It is a summary of the Mental Capacity Assessment. The title of the form is derived from the fact that it is numbered three.
Where it is found that a person does not have the capacity to conduct their own proceedings, the Official Solicitor may be appointed to conduct the proceedings on the individual’s behalf. Our expert witness psychologists will accept instructions from the Official Solicitor.
What is Included in A Mental Capacity Assessment?
Our expert witness mental capacity assessments will use only the tests necessary to assess whether the individual being evaluated lacks mental capacity. The mental capacity assessment will typically take place at the client’s home. There will be a written report which will be produced in accessible language. It will be necessary for the psychologist to read any necessary background documents; they may well need to consult with family members, solicitors, and other healthcare professionals.
What Other Mental Capacity Assessments Does Advanced Assessments Carry Out?
Testamentary Mental Capacity Assessments
A testamentary mental capacity assessment can be carried out by our expert psychologist to determine whether the individual who is being assessed has the mental capacity to make a will.
Lasting Power of Attorney (LPA) Capacity Assessments
A lasting power of attorney capacity assessment relates to the ability of the person who is being assessed to understand and submit the necessary documentation which permits them to engage someone to assist them in making decisions on their behalf. These decisions may relate to financial, health, welfare or indeed property decisions.
Capacity to Gift Assessment
Capacity to gift assessments can be carried out by our psychology experts to ensure that the person has the psychological capacity to make a financial gift.
Item Specific Capacity Assessments
Item specific capacity assessments are carried out when we are instructed to determine the person’s capacity within a particular area. For example, their ability to divorce someone or to instruct a firm of solicitors.
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